The Legality or Otherwise of the Demolition of Hotel By Gov. Wike of Rivers State – By Musa Dolapo Omiwole
The recent demolition of two hotels in river state by Gov. Nyesom Wike based on an alleged operating in violation of an existing executive order of river state government, known as executive order RSVG 01 2020 pursuant to sec 2,4 and 8 of the quarantine act, cap Q2 laws of Federation of Nigeria 2004 has sparkled a lot of controversies as to its constitutionality, act according to the rule of law or otherwise of it
‘Where there is law, there is always a remedy’
Sec 10 sub(1)(A) of the Quarantine act created the offence and also the penalty for such.
For ease of reference, Section 10 sub (1)(A) of the Quarantine act provides thus:
“Any person who refuses or willfully omits to do any act which he is required to do by this Act, or refuses or willfully omits to carry out any lawful order, instruction or condition made, given or imposed by any officer or other person acting under the authority of this Act shall be guilty of an offence and shall be liable on summary conviction before a Magistrate to a fine of four hundred dollars or to imprisonment with hard labour for six months or to both such fine and imprisonment.”
A proper perusal of the above section clearly shows that, the Quarantine Act, 2004 which define what constitute an offence, equally provides punishment for violation of same and the provision thus, never provided for such severe punishment imposed by the river state governor.
Here in Nigeria, the constitution is largely regarded to be the grand norms from which other laws derived their validity. In an event where there is any law that contradicts the provision of the constitution, it will be render null and void. This, invariably, explains the supremacy of the constitution. This is evident under Sec (1) sub (3) of 1999 CFRN (as Amended).
The Executive Order by its tenor and letters is a frontal deviation l to Sections 43 and 44 (1) of the Constitution which protects the rights of Nigerians to acquire and own movable property and interest in immovable property “except in the manner and for the purposes prescribed by a law”
It should be noted that this right can be deviated from “for the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence” or “relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry”. See Section 44 (2) (b) and (k) of the Constitution, respectively.
However, the operative term is for breach of any law. The Executive Order is not, and cannot be regarded as a law as envisaged by the Constitution. The right to acquire and own property is a fundamental right and cannot be taken away at the whims and caprices of the Governor through Executive Order or fiat. (Obiter in the case of FAITH OKAFOR V LAGOS STATE GOVERNOR)
Supreme Court had decided in the celebrated case of AOKO V. FAGBEMI (1961) 1 ALL NLR 400 that, an act or omission cannot constitute a crime except it is prescribed in a written law. This position was reaffirmed by the Apex Court in the latter case of FEDERAL REPUBLIC OF NIGERIA V. IFEGWU (2003) 15 NWLR (PT. 842) 133.
In the more recent case of FAITH OKAFOR V. GOVERNOR OF LAGOS STATE & ANOR. (2016) LPELR-41066 (CA), the Governor of Lagos State issued a directive restricting the movement of citizens and residents during the State’s monthly environmental sanitation, the Court of Appeal unanimously held that the Appellant, Faith Okafor, could not be arrested or prosecuted for disobeying or flouting the Executive Order or Directive of the Governor of Lagos State because the Appellant could only be arrested and prosecuted for an offence that is prescribed in a written law.
In his concurring judgment, BIOBELE ABRAHAM GEORGEWILL, J.C.A. at p 46-47 declared thus:
“It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead”
Taking into cognizance the above judicial and statutory authorities, it is my humble view, that the demolition by Gov. Nyesom Wike is unconstitutional, a threat to democracy, and misuse of power.
Similarly, the constitution which is the grand norm from which other laws derived there power has specifically make provision for rule of law, separation of power among the three organs of government, and had distinguished there power for the sole aim of upholding the principle of check and balance.
Nigeria of today is a democratic state, and no person have an absolute power and authority to be the alpha and the omega. Every citizens of Nigeria are entitle to fair hearing (sec 36 CFRN), and as a result, where there is any allegation against anybody, it is the duty of the executive to investigate, arraign and prosecute an offender if found guilty. These are the process that should have surface in the recent order of demolition ordered by Governor Wike. If there is going to be any demolition, same can only be done upon an order of court. Gov. Wike, in his total disregard to rule of law and procedure issued an order for the demolition of the two hotel without trial. This, i must say, is a threat on democracy.
Still on my submission, the above section of the quarantine Act, 2004 has made it Crystal clear under sec 10 sub (1)(A), that maximum penalty provide for under the Act is 6month imprisonment or fine or both. This, Governor Wike did not take into consideration while issuing the order of demolition. The Court of Appeal in the case of FRN vs Onah held that:
“While the sentence of the Court must be in accordance with that prescribed by the statute creating the offence, a Court cannot impose a higher punishment than that prescribed for the offence”.
From the above, one will easily see, that Governor Wike cannot make an order of demolition. Doing so will be a total deviation from the punishment prescribed under the Act. Admittedly, the hotel management violate the Quarantine Act, 2004, the fact still remains that, the process upon which they were tried are strange and unknown to law.
Here in Nigeria, we operate democratic regime. For him to have acted outside the ambit of law, his regime is more of like a tyrant that ruled without recourse to law. On this ground, the affected parties can institute an action against Gov. Wike and i am sure that the court will ensure that justice is served in the process.
Conclusively, I will proffer an advice, that where the affected parties intend to sue Gov. Wike for his act, it should be on his personal capacity as an individual, and not as the Governor of the state. Similarly, all damages that may be awarded against him should be payed from his own personal pocket and not from the government purse.
My humble submission.
Musa Dolapo Omiwole writes from College of Law, Kwara State University, Lalete
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