The corona virus pandemic have no doubt changed the way we lived and has affected all and sundry in no small measures. In order to curb its spread, governments all over the world have introduced measures to contain the spread of the dreaded corona virus. Rivers State is no exception to this. In fact, for the past three weeks, the state Governor has been consistent in dishing out orders and directives like a steward in a banquet ceremony.
Sometimes last week, the state governor in one of its orders, threatened to demolish hotels that goes contrary to his directives and to auctioned cars that violated the restrictions of vehicular movements in the state. True to his words, on Sunday the 10th day of May, 2020 two hotels cum Guest Houses were demolished for allegedly violating the orders of the governor.
The legal framework put in place in course of this corona virus pandemic by the state government are:
Rivers State Government Executive Order 001 of 2020
The Quarantine (Corona Virus and other Infectious Disease) Regulations 2020
Several (unwritten) directives cum orders shutting down markets, motor parks, churches, beer palours etc.
It is interesting to note that theses Executive Orders and Regulations were made pursuant to the Quarantine Act, Cap. Q2 LFN 2004.
The questions begging for answers are these:
Can the property of a land owner be demolished for disobeying an executive order of a State Government?
Does the governor of Rivers State have the locus to auction cars ceased for violating the lockdown orders of the State Government?
In answering the first question, it is important to note that the right to acquire and own immoveable property is not just a human right but also a constitutional right that is jealously guided and protected by the grund norm, the kabiyi esi, the Igwe and Emir of all laws, the 1999 Constitution itself. In determining the nature of fundamental rights, the Supreme Court in the case of Chief (Dr.) Mrs. Olufumilayo Ransome & Ors v. AGF (1985) 3 NWLR (Pt. 6) 211 per Eso JSC (as he then was) stated the law as follows:
“Human rights is a right which stand above the ordinary laws of the land and which is antecedent to the political society itself. It is a primary condition for a civilized existence and what has been done by our constitution since independence … is to have these rights enshrined in the constitution so that the rights could be ‘immutable’ to the extent of the ‘non-immutability’ of the constitution itself”
Flowing from the above, section 43 of the constitution provides as follows:
43 subject to the provision of this constitution, every citizen of Nigeria shall have the right to acquire and own immoveable property anywhere in Nigeria.
Section 44(1) went further to forbid the arbitrary seizure and confiscation of immoveable property. The section provides as follows:
44(1) No immoveable property or any interest in an immoveable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law that, among other things,…
The import of the above provision is that for a property to be validly acquired albeit compulsorily, is via overriding public interest. See sections 28 and 29 of the Land Use Act Cap. L5 LFN 2004. See also Lawal v. NEPA (1979) 2 SC 109 at 130 – 134; Akere v. Governor of Oyo State & Ors. (2002) LPELR – 12291.
It is my candid view that it was unconstitutional and a flagrant abuse of the executive powers entrusted on the Governor of Rivers State to demolish two hotels under the guise of disobeying executive orders. I have argued elsewhere that the violation of executive orders or directive of governors (howsoever called) is not an offence known to law upon which a conviction can be based. See https://thenigerialawyer.com/conviction-of-funke-akindele-a-litany-of-unforced-errors-by-prince-azubuike-esq/.
In a similar vein, the Court of Appeal in the case of Okafor v. Governor of Lagos State (2016) LPELR – 41066 (CA) per B. A. Georgewill held that no person can be arrested or prosecuted for circumventing or violating an Executive Order.
Assuming but not conceding that a valid law was violated by the operators of the hotels that were demolished, common sense at least dictates that the owners of the hotels should have been tried in a competent court, the Governor shouldn’t have been a judge in his own cause, the principle of natural justice forbids that. We saw a situation where the Governor was both the Executive, Legislature and Judiciary. This is what the principle of separation of powers tries to prevent because putting so much powers in the hands of one man is an invitation to oppression. See Obeya Memorial Specialist Hospital v. AGF (1987) 3 NWLR (Pt. 60) 325.
On the second issue whether the Governor of Rivers State have the locus to auction cars seized in contravention of the lockdown directives? The answer is an emphatic NO.
As stated earlier, the various Executive Orders, Regulations and Directives of the Governor was made pursuant to the Quarantine Act. In section 5 of the Quarantine Act, punishment has already been provided for the violations of the provisions of the Act which are a fine of #200, or six months imprisonment or both. It is humbly submitted that any fine or punishment that goes contrary to that provided by the principal legislation is void and cannot stand.
It is therefore unconscionable for the Governor to call for auctioning of vehicles seized for violating the lockdown order of the State Government. It follows therefore that any person who makes the mistake of buying such vehicles buys litigation for himself.
No law in Nigeria empowers anyone, not even the Governor of a State to take laws into his hands as Wike has done in this case. The Executive Powers vested on him in section 5(2) CFRN 1999 does not extends the Governor committing illegality.
The use of fear, intimidation and psychological trauma as a tool in governance are only employed by weak leaders that have ran out of solutions to the challenges facing the masses. Rivers people will not be cowered or intimidated by such antics. Corona virus should not make us loose our sanity.
I therefore call on the owners of the demolished hotels to remain law abiding and seek legal redress. The wheels of justice grinds slowly but surely. Ubi remedium ibi jus (To every injury there is a remedy).
Prince Azubuike Esq.
Partner, West Law Solicitors