By CHIEF MIKE OZEKHOME
AS a well cultured Nigerian and Catholic Christian, I abhor criminality in all its ramifications. I have been a serial victim. But God has always delivered me from the snares of all evils (Psalm 23). As a constitutional lawyer and human rights activist, I speak not just for today, but for tomorrow and posterity.
I do not simply jump into the fray of issues and take the popular and most convenient route. Many do, without weighing the possible negative effect of such populist positions. Such may be good music to the ears in the short measure. I prefer to look at, not just the short, but the medium and long term effects and consequences of such delicate matters. That is why over 98 per cent of my postulations have always come to pass.
Not a few Nigerians have wondered aloud whether I am a prophet, seer or Nostradamus. I am neither. Some Nigerians have, on the trending issue, been vociferously in support of the Ondo State’s blanket order given to herders, by my good friend, Governor Rotimi “Aketi” Akeredolu, to quit Ondo forest reserves within seven days. Many have applauded it. Many endorsed; clapped.
There is some sense in this, éclat though. But, have we stopped for a moment, to look at the possible manifold and ponderous effects of such a blanket order on other tribes and indigenes living in other parts of Nigeria other than their own? Have we analysed and interrogated the issues?
When my good friend, Governor Nyesom Wike of Rivers State ordered the demolition of a hotel for the owner’s violation of COVID-19 rules, I intervened, arguing that he should have done it through a court order. I suggest that the owner of the hotel should go to court for redress.
In the same measure, I argued that Governor Nasir-El-Rufai should not have rolled out bulldozers and caterpillars to demolish a hotel in Kaduna simply because it was alleged that the owner had desired to use it for a nude party, a matter never proved. It was simply political. But, I believed it should have been done through a court order; not through brute force.
We cannot use illegality to fight illegality; just as it is wrong to use corruption to fight corruption. Can we really stop Nigerians from plying their trade in any part of Nigeria, if done legitimately and in accordance with extant laws? I think not. I hope not. I pray not. We must learn, in a constitutional democracy, to be a country governed by laws, not men.
We must build a country of strong institutions, not strong men. This was why America only just recently defeated a strongman, performer president Donald Trump, with strong institution. It is in this context I will now proceed to critically analyse and interrogate, whether Governor Akeredolu’s seven days notice for herders to quit Ondo State forest reserves is legal, constitutional and proper.
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The legal regime: The Land Use Act of 1978, LUA, has since laid the issue to rest as to who controls land in Nigeria. The provisions of Sections 1 and 2 of the Land Use Act, provides that “all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that State; such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act”. The Act says “all Nigerians”, not only indigenes of a state.
The case of Nzenwata & Ors V. Nzenwata (2016) LPELR-410 89(CA) gives a detailed explanation of the control and management of land under the Land Use Act, 1978, in the following words: “By the provisions of Sections 1 and 2 of the Land Use Act, 1978, all land comprised in the territory of each State in the Federation were/are vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act (Section 1 of the Act).
Also as from the commencement of the Act, all land in the urban areas shall be under control and management of the Governor of each State and all other land shall, subject to the Act, be under the control and management of the local government within the area of jurisdiction of which the land is situated. (Section 2(a) and (b) of the Act).
“By the provisions of Sections 5 (1) and 6(1) of the Act which deal with the Principles of Tenure, Powers of the Governor and Local Governments and Rights of Occupiers: It shall be lawful for the Governor in respect of land, whether or not in an urban Area- (a) to grant statutory rights of occupancy to any person for all purposes.” Section 5(1) (a) Section 6 (1) of the Act on the other hand provides that: It shall be lawful for a Local Government in respect of land not in an urban area- (a) to grant customary rights of occupancy to any person or organisation for the use of land in the Local Government Area for agricultural, residential and other purposes.”
The combined effect of the provisions of all the Sections of the Act above quoted is that all lands in urban areas as well as the rural areas are either vested in the Governors or Local Government Chairmen and all citizens of this Country who hitherto owned land or not are mere beneficial occupiers or owners as the State Governor in cases of land in Urban areas hold such land in trust for them. See Savannah Bank of (Nig) Ltd. & Anor v. Ajilo & Anor (1989) LPELR-3019 (SC) Per Belgore, JSC (as he then was) at pages 84-85, Paragraphs A-C).” Per AGUBE, J.C.A. (Pp. 32-34, Paras. D-D).”
In accordance with Section 1 of the Land Use Act 1978, State Governors can exercise the power to grant statutory rights of occupancy in any part of the State, at which point a proof of the right of occupancy, which is known as a Certificate of Occupancy, is issued by the State Governor.
From the above provisions, it is crystal clear that the Ondo State government and its Governor, Arakunrin “Aketi” Rotimi Akeredolu have control over all lands within the State’s territory. It is also clear that “all citizens of this country who hitherto owned land or not are mere beneficial occupiers or owners as the state Governor in cases of land in urban areas hold such in trust for them”.
Additionally, section 28 of the LUA, 1978, provides for the powers of the Governor to revoke a right of occupancy already granted for overriding public interest. Similarly, the instances in which these rights can be revoked are provided for in the same section (28). From the aforementioned, it is within the powers of the Ondo State Governor to exorcise and expel occupants of lands within its territories, if it is shown to be in the overriding interest of the public, such as security matters.
Governor Akeredolu can, therefore, in exercising the rights granted to him by virtue of his position as Governor of Ondo State, issue the order asking herders to vacate the forests reserves within seven days, simply on the ground that the reserve belongs to the Ondo State government. Indeed, the Governor can compulsorily acquire such lands as occupied by the ungovernable herdsmen, in accordance with section 44 of the 1999 Constitution.
In such a lawful event, the Governor is expected to make prompt payment of compensation to the herdsmen, who have lawfully been in occupation without criminal records in accordance with section 44(1)(a) of the Constitution. See Aigoro V. Commissioner Of Lands And Housing, Kwara State (2011) LPELR-9112(CA).
To be concluded
Dr. Ozekhome(SAN), a constitutional lawyer, wrote from Lagos
Vanguard News Nigeria
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