The Rivers State Government, led by its Governor, Nyesom Wike, was reported to have allegedly demolished private properties worth millions of Naira.

The demolition of the two nos. properties believed to be hotels located at different axis within the State, was according to report, premised on the fact that they operated in violation of an existing Executive Order of the Rivers State Government, known as Executive Order RVSG – 01 2020, pursuant to Sections 2, 4 and 8 of Quarantine Act, Cap. Q2 Laws of the Federation of Nigeria 2004 and Regulation 11 of the Quarantine (Coronavirus (Covid-19) and Other Infectious Diseases) Regulations 2020.

My humble take on the action of the Rivers State Government could be best summerized using the provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), to the effect that, whatever Guidelines and Regulations spelt out in this Executive Order of the Rivers State Government, no matter how beautifully couched, where same appears to contradict or compete with any provision of the Constitution – even the most irrelevant part of the Constitution (if any), that law would to the extent of its inconsistency, be null, void and of no effect whatsoever. Please see the case of Oloyede Ishola V. Ajiboye (1994) 7-8 SCNJ 1. Where the Supreme Court unequivocally declares that:

“The constitution is supreme not only when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the constitution.”

Section 43 of the 1999 Constitution guarantees the right of every citizen to acquire and own moveable and immovable properties anywhere in Nigeria. The same Constitution under sections 44(1), out rightly prohibits compulsory acquisition, unless where a corresponding compensation/relocation is made. However, subsection (2) of that section which acts as an exception, provides for situations where private properties could be forfeited to Government, especially where a breach of law occurs. Paragraph (b) of subsection (2) is hereunder reproduced for ease of reference, thus:

“44 (2) Nothing in subsection (1) of this section shall be construed as affecting any general law –
For the imposition of penalties or forfeitures for breach of any law, whether under civil process or after conviction for an offence.”
From the foregoing, it could be gathered that activation of the above exception is not automatic, as it goes with preconditions, like the existence of laws or legal instruments spelling out offences capable of leading to property forfeiture, as well as associated sanctions. Further to this, a competent Court of law must be approached through civil or criminal processes to secure conviction or an order of forfeiture for the property. It is upon securing the grant of same that a government may proceed to deal with the property in whatever way it so pleases, by either converting same for its use, auctioning or demolishing it in accordance with the dictates of the enabling law.

As we can see, section 44(2)(b) qualifies as the fountain upon which the validity of laws which enables forfeitures of private properties are drawn from. As such, a community reading of this section with section 45 of the Constitution, establishes justifications for the denial of the rights guaranteed under Chapter IV of the 1999 Constitution, especially for the interest of defence, public safety, public order, public security and public health. Suffice it to state that it is under the authority of this section that State Houses of Assembly and National Assembly enact laws for their respective agencies, granting them the power to seize and or destroy moveable and immovable properties, though after fulfilling certain legal requirements like securing orders of forfeiture from competent Courts or Tribunals. Please see Customs Act, NDLEA Act, EFFCC Act to mention but a few.

While trying to restrain myself from delving into the validity or otherwise of the provisions of the Executive Order on Covid-19 relied upon by the Rivers State Government for their action, I must however state that I had expected more from the Government, especially considering the fact that the incumbent Governor is a senior lawyer and a distinguished member of the Body of Benchers of the Nigerian Bar Association. I had expected the height of compliance to the rule of law. An arm of government cannot after enacting a law, act as the accuser, enforcer and the judge. The sacred principle of checks and balances must be upheld by government at all levels.

While commending the continued efforts of the Rivers State Government in putting up measures necessary to contain the spread of Covid-19 in the State, I think the government took it too far by not first approaching a Court of law to secure Interim Orders of Forfeiture, which would have enabled them to seal off the properties, before logically following-up the substantive case in order to obtain judgement for complete forfeiture of the properties. It is only when this is achieved, that the government may elect to do whatever it pleases with properties, unless the owners proceeds on further appeal. Believe me, even though the process appears somehow complicated and time consuming, it is worth it, because as a democracy, that is how justice operates. Its wheel, though slow, always meets its purpose and accords satisfaction to all parties involved.

I must say that it is not too late for the Rivers State Government to review its administrative excesses and set up reparatory measures. The Governor must distinguish himself as a learned gentleman of the legal profession and view his call to lead the State as a great privilege. He should diligently seek the common good, happiness and satisfaction of his people by initiating friendly government policies, while executing same with human face. The State, under the leadership of Wike as I am aware, aspires to be the foremost investors hub in not just Nigeria but Africa, therefore, actions such as the one under context, which targets already established businesses in the State, may act as stiff counters towards the actualization of such aspirations.

Piribonimibo Isaac Harry is a Principal State Counsel with the Federal Ministry of Justice, Abuja. ([email protected]) +905338623457