Is demolition of hotels in Rivers constitutional

Recently, Rivers State Governor Nyesom Wike, ordered the demolition of two hotels in the state for allegedly violating the lockdown rules. The Hope Classic speaks with legal practitioners on the development, Excerpts:

Mr. Charles Titiloye

The demolition of two hotels by Governor Wike without recourse to the law Court is an act of executive lawlessness.

The constitution of the Federal Republic of Nigeria provides that, in the determination of civil rights and obligations of a citizen, the citizen shall be entitled to fair hearing before a Court or Tribunal set up in a manner to secure it’s independence and impartiality. The Constitution of the Federal Republic forbids a situation where an individual or body will be the accuser and at the same time the Judge who will give sanctions on violation of law.

Governor Wike can make executive order for the containment of spreading of Covid-19 in Rivers State. A violation of such order requires the activation of judicial process to determine the guilt of offenders to the regulation.

However, Governor Wike took laws into his hands, disregards the constitution and embarked on jungle justice of demolition of hotels of violators of his executive order. This is a clear infraction on the constitution and display of tyranny by the Governor.

All lovers of democracy and constitutionalism must condemn this executive recklessness. COVID-19 pandemic can never be an excused to disregard due processes of law expressly stipulated in the constitution. Both the government and the people are bound to obey the law. This is basic concept encapsulated in the principle of Rule of Law.

It is the greatest height of injustice and reckless use of executive powers. Governor Wike holds executive powers being the governor of the state. Assuming the owners of the hotels violated lockdown rules and regulation as alleged, it beholds on the governor to follow due process of law in addressing the act of violation.

The violators should have been tried in accordance with the extant law of the land. In other words, the governor who holds executive powers should have handed the violators to the court for appropriate sanction, rather than taking laws into his hands.

Recall that the right to own immovable property is patently protected and guaranteed under section 43 of the Constitution. This protection falls within the rights tagged ‘fundamental rights’ in the Constitution.

They are rights conferred on Nigerians by virtue of being human and as sanctioned by the Constitution. It therefore means that such right cannot be taking away unless with due process and in accordance with the laid down procedure.

First, the governor does not have such judicial power to punish any alleged offender. Second, the punishment is not commensurate with the offence allegedly committed. These are probable consequences of doing what you are not trained and or empowered to do.

Concomitantly, the governor has gone outside his lawful powers to violently violate the rights of these people and they are entitled under the law to remedies as appropriate. The act of the governor is nothing, but an aberration and executive high handedness. It should be condemned by all.

Mr Olaleye Akintububo

In my humble opinion the Governor of Rivers State, His Excellency (Barrister) Nyesom Wike erred in his unguided action by demolishing the hotels. His action is not only draconian but unconstitutional.

Governor Wike with executive lawlessness mentality and rascality flagrantly breached the sacred provisions of sections 36, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Basically, section 36 of the Constitution generally guarantees the right of an accused to fair hearing.

This is one of the major pillars of societal justice as expressed in the Latin maxim “audi alterem partem,” which literally means, “hear the two sides of the case before you judge.

Governor Wike, with impunity and reckless abandon and ignored the sacred provisions of sections 36 of the Constitution as he denied the owners of those demolished hotels, the opportunity of being heard before carrying out the dastardly act.

It is also my humble opinion that the right of the victims to own immovable properties anywhere in Nigeria as Nigerians has been recklessly breached by the Governor. See sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Governor Wike as a senior lawyer and a member of Body of Benchers for that matter ought to know that an executive order cannot override the sacred provisions of the Constitution.

Though I have not been privileged to read the purported executive order, I am of the humble view that if any offender contravened its provision, such a person ought to be arraigned before a court of competent jurisdiction. And if the court finds him guilty, he should be convicted accordingly. If the punishment for the offence is the demolition of the building, then it will be lawful for it to be demolished. Governor Wike in the instant case was the lawmaker, the accuser, the judge and the executor all rolled into one.

He trampled on the agelong principles of separation of powers and the tenets of Rule of law as espoused by great legal minds like A. V. Dicey, Dean Rosco Pound, Jean Jack Rousseau etc. His action is reminiscent of the military jackboot days.

I am optimistic that if the victims of his executive rascality approached the court, they will get commensurate judgment and there will be remedy because the appropriate legal maxim in this case is “ubi jus, ubi remedium”- (for every wrong, the law provides a remedy.)

Mr Tosin Sunday Eye

To start with, the destruction of the two hotels by Wike is a clear display of executive rascality and indeed a true confirmation of the words of Thomas Hobbes, which say that power corrupts, but absolute power corrupt absolutely.

The right to own property is a fundamental right and constitutionally prescribed in section 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and for such an action to be justified, Wike, a senior lawyer for that matter ought to have gone through the Judiciary. Even the Judiciary will have to ensure that the right to fair hearing is entrenched.

Moreover, even the so, called executive order Wike relied upon in demolishing the two hotels is ‘Not a law’ and will never take the place of a law.

Judicial precedents such as Faith Okafor v. Lagos State Government has decided beyond any iota of confusion that an executive order per se made by the executive arm of Government cannot be likened to a law made by the House of Assembly and does not even have the characteristic of a law. In fact, same cannot be whimsically relied upon to breach the fundamental rights of citizens and in this case, the right to property is in view.

Governor Wike has indeed showed himself as a man without respect for the Rule of law or the Constitution he swore to protect and abide by. Some might argue that we are in desperate time in view of the pandemic called Coronavirus. But the question we all ought to ask ourselves is “Was the destruction of the hotels the only option, available to Wike to serve as a deterrence and to ensure that people did not breach the lockdown?” Clearly, a logical answer is a resounding No! The Governor had several options such as shutting down and sealing the hotel, using the hotels as an isolation centre in view of their availability of beds, prosecuting the owner of the hotels, revoking the certificate of occupancy of the structure.

In the event that the hotel owners do have same, seeking for an order of forfeiture of the hotels to River State Government vide approaching the Judiciary and so much more. We should also understand that Wike has by his actions shown himself to be the accuser and the judge in his own case which clearly breaches the twin pillars of natural justice and fair hearing. It is indeed a sad and unconstitutional precedent laid by Wike.

We should remember that even a notorious armed robber or kidnapper is entitled to his day in court. He cannot be unjustifiably gunned down on the believe that he is a notorious criminal. It is high time the electorate considered electing leaders with exemplary lifestyle and not betrayers and breachers of the tenants of the Constitution.

Mr Akinyemi Omoware

It is the greatest height of injustice and reckless use of executive powers. Governor Wike holds executive powers being the governor of the state. Assuming the owners of the hotels violated lockdown rules and regulation as alleged, it beholds on the governor to follow due process of law in addressing the act of violation.

The violators should have been tried in accordance with the extant law of the land. In other words, the governor who holds executive powers should have handed the violators to the court for appropriate sanction, rather than taking laws into his hands.

Recall that the right to own immovable property is patently protected and guaranteed under section 43 of the Constitution. This protection falls within the rights tagged ‘fundamental rights’ in the Constitution.

They are rights conferred on Nigerians by virtue of being human and as sanctioned by the Constitution. It therefore means that such right cannot be taking away unless with due process and in accordance with the laid down procedure.

First, the governor does not have such judicial power to punish any alleged offender. Second, the punishment is not commensurate with the offence allegedly committed. These are probable consequences of doing what you are not trained and or empowered to do.

Concomitantly, the governor has gone outside his lawful powers to violently violate the rights of these people and they are entitled under the law to remedies as appropriate. The act of the governor is nothing, but an aberration and executive high handedness. It should be condemned by all.

Miss Olubunmi Akinola

The demolition of the two hotels in Rivers State, by Governor Nyesom Wike is unconstitutional, despotic, a gross abuse of power and a desecration of the Courts.

There is no provision under the law for the governor to take the law into his hands and then begin to mete out punishment on citizens without recourse to the Constitution.

He is not permitted by any law to arrogate the powers of the court to himself and the power to determine the guilt of an offence and to issue penalty accordingly lies only within the courts.

Under our law, and emergency situation under the Quarantine Act, it does not permit the demolition of the property of an alleged offender by the order of the Governor. An offence can be created by either a principal law or subsidiary legislation or instrument such as regulations or executive order.

The Executive Order of Governor Nyesom Wike is nothing but a mere subsidiary legislation. Even though a subsidiary legislation has the force of law, it cannot override the provisions of its enabling law.

The enabling law to Governor Nyesom Wike’s Executive Order is the Quarantine Act, the Executive Order can therefore not impose a penalty outside of and higher than what the Quarantine Act prescribes. An executive order is made by the president or the governor of a state in furtherance of an existing law and it cannot go beyond the constitution of the land which is supreme and also guarantees a fair trial.

By virtue of Regulation 1 of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020, any person who contravenes any regulation made under the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations, 2020 or any Executive Order made thereunder commits an offence and is liable on conviction to a fine of: N50,000 (fifty thousand naira) where the offender is a natural person; and N 1M (one million naira) where the offender is a body corporate.

Under regulation 2 of the said Regulations (No. 2) 2020, a person who is convicted in accordance with regulation 1, shall in addition to the penalty specified therein, forfeit to the state any vehicle, property or item used in the commission of the offence.

From the reading of regulations 1 and 2 of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020, the forfeiture of any vehicle, property or item used in the commission of an offence follows automatically from the fact of conviction.

Where the court at the conclusion of trial convicts a defendant for breach of any regulation or executive order, the court can order forfeiture in addition to the penalty specified in Regulation 1, which is payment of fines. Clearly, the forfeiture provided for under Regulation 2, is a court-ordered forfeiture. Accordingly, no property can be demolished or even forfeited without an Order of the Court following conviction of the owner thereof, as such act will be deemed Illegal.

Accordingly, the owner of the hotels can be arrested or prosecuted for circumventing or violating an Executive Order instead of their properties being demolished. There were ways the governor of the state could have punished the owners of the hotels that violated his order. Whoever breached the law/order of the state governor should have been tried and convicted by a court of law before a sentence can be pronounced.

What the governor should have done is to have them arrested and they should be charged to the court and let the court prosecute them.

Democracy thrives more on obeying and promoting the Rule of law rather than the whims and caprices of the leaders against the lead. The action of the governor if allowed to thrive in a democracy such as ours, could confer on such office holder’s infinite, absolute and autocratic powers contrary to the clear provisions of the Constitution of the land, to which both the leaders and the led are subject.

Such autocratic, absolute and infinite powers must not be allowed to fester upon our nascent democracy.