An Act in Search of Justification?
In this article, Nwora Obiora, discusses the Governor of Rivers State's revocation of the Statutory Right of Occupancy (SRO) of Novotel Hotel, Port Harcourt, on the ground that it is being used for 'unwholesome' activities like election rigging, which aff
Governor Wike’s Revocation of Novotel Hotel’s Statutory Right of Occupancy
Recently, the news of the revocation of Statutory Right of Occupancy (SRO) of Novotel Hotel, Port Harcourt, by Governor Nyesom Wike of Rivers State, graced the pages of most National dailies and online blogs.
The Governor cited the usage of the said hotel, as a notorious spot for election rigging in the State, as justification for the revocation of the said SRO of Novotel Hotel, Port Harcourt. The Governor was quoted in Vanguard Newspaper of Monday July 31, 2017 in the following words:
“We cannot allow hotels to be used for unwholesome activities. The Special Adviser on Lands has been directed to revoke the Certificate of Occupancy of Novotel. Any business that is used to affect the security of Rivers State will face the music. “Nobody will allow rigging in 2019. In 2019, it is one man, one vote. I appeal to APC to allow internal democracy to take place.”
The act of the Governor, has attracted applause and condemnation from different quarters and commentators, depending on the part of the divide such commentators belong to, or the lens used by such commentators, in viewing it. To the members and supporters of the People’s Democratic Party (PDP), Governor Wike deserves another National Award in addition to the one he already has, as a true leader and fighter of corruption, while to the All Progressive Congress (APC) members and apologists, Governor Wike is nothing but a clog on the wheel of democracy, epitome of corruption who deserves immediate impeachment from the office of Governor of the State.
Whatever the accusations and counter-accusations by the ‘hailers’ and ‘wailers’, about the action of the Governor are, we wish not to be bothered or distracted by them. However, our concern is to dissect, x-ray and juxtapose the action of the Governor, using the necessary apparatus which is our Statutory and Judicial authorities on the extant matter.
Pertinent Questions
In order to arrive at the desired result, we will be asking three questions which can either be answered in the affirmative or in the negative. These questions are as follows: 1. Does a Governor have the power to revoke SRO? 2. Is such power with or without limitations? 3. What happens when such power is exercised ultra vires?
When a Governor Can Revoke SRO
Land matters in Nigeria are governed by the Land Use Act 1978 (LUA), Cap. L5 Laws of the Federation of Nigeria, 2004 and as such granting and revocation of SRO, is governed by the said Act. By virtue of section 1 of the LUA, all lands comprised in the territory of each State in the Federation, is vested in the Governor of that State (Federal Government owned land in a particular state is excluded), 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 LUA. Hence, one can say that the Governor is the landlord and all the holders of SRO are merely lessees of the said land, thereby creating a lessor-lessee relationship between the Governor and the holders of SRO.
A Governor being the landlord and grantor of SRO to its holders under the LUA, has the power to revoke such SRO granted under the same Act. Section 28(1) LUA provides that: “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”. The Governor can also revoke a SRO, in the event of the issuance of a notice by or on behalf of the President, if such notice declares such land to be required by the Government for public purposes (Section 28(4) LUA), or where the holder of such SRO is in breach of terms and conditions of the said SRO, as provided under Section 28(5) LUA.
The LUA went further to define what amounts to overriding public interest in the case of SRO under Section 28(2) LUA which provides as follows:
(2) Overriding public interest in the case of a statutory right of occupancy means--.
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith
Where the purpose of revocation is requirement of the land by the Local, State or Federal Government for public purpose, any of the purposes stated in section 51 of the LUA is implied, namely: (a) for exclusive Government use or for general public use; (b) for use by any body corporate directly established by law or by any body corporate registered under the Companies Act 1968 as respects which the Government owns shares, stocks or debentures;
(c) for or in connection with sanitary improvements of any kind;
(d) for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;
(e) for obtaining control over land required for or in connection with mining purposes;
(f) for obtaining control over land required for or in connection with planned urban or rural development or settlement;
(g) for obtaining control over land required for or in connection with economic, industrial or agricultural development; For educational and other social services.
I took the pains to reproduce the extant provisions of the LUA on the revocation powers of a Governor over an SRO, for obvious reasons. One cannot but wonder, after a proper consideration of the above reproduced sections of the LUA, where the reason adduced by Governor Wike in revoking the SRO of Novotel Hotel, fits in. The reason the Governor gave to justify his action, observed the overriding public interest test under Section 28(1) LUA in its breach, rather than observance, it did not pass the public purpose by the Federal Government test under Section 28(4) LUA, and failed the breach of terms and conditions of SRO test under Section 28(5) LUA.
Election Rigging: Not a Ground for Revocation
The crime of election rigging, no doubt, is a cankerworm that has eaten deep into the fabric of our nascent democracy, and must be condemned in the strongest terms, if we must make a headway as nation. However, the provisions of the LUA, are crystal clear on the grounds on which a Governor can act to revoke a SRO, and allegation of an offence and conviction of same is no part of such grounds!
Assuming (without conceding) that being convicted of certain offences by holders of SRO entitles the Governor to revoke their SRO under the LUA, which Court convicted Novotel Hotel of the offence of aiding and abetting election rigging? Can an allegation or suspicion of having committed an offence, amount to conviction? The law is trite that, suspicion, no matter how grave, cannot ground conviction. IKO v STATE (2001) 14 NWLR (Pt. 732) 221. Will Governor Wike’s action not be tantamount to being the accuser, prosecutor and the Judge in his own case? Then, one cannot but ask wherein lies the rule of nemo
judex in causa sua? Funny enough, these are all assumptions which have no place under our legal system, and as such, should not have arisen in the first instance, in the face of the unambiguous grounds upon which a Governor can revoke an SRO.
There cannot be a good way of doing the wrong thing. Put differently, one might be doing the right thing, but applying the wrong approach! This is the case in this instance. The machinery of the law, could have been set in motion to investigate, prosecute and possibly convict Novotel Hotel for election malpractices, if found culpable. The step taken by the number one citizen of Rivers State, appears to be that of an accuser, prosecutor and the judge, all at the same time. He did not stop there, he went ahead to introduce a new element into the provisions of our laws on revocation of the SRO, by acting on the decision of his own Court as justification for revoking the SRO of Novotel Hotel.
The reason for revoking Novotel Hotel’s SRO could have been faked, even though there might still be a political undertones to such action. Perhaps, his excellency should have stylishly premised the revocation, on the need to build an amusement park, erect water fountain, create ground for dumping of refuse, or on anything that is justifiable under the provisions of the LUA, rather than whipping unnecessary sentiments, by adducing election rigging as the reason for such unfounded action.
Citing Election Rigging Centre, as reason to revoke SRO, appears flowery but unconvincing, as it is lame and unfounded in law. The Governor is expected to know better than this! Yes, I expected better knowledge from the Governor, since he is a Lawyer by training, and is also married to a Judge.
Attitude of the Court to Unlawful Revocation
The attitude of the Court towards any revocation of SRO which is done outside the provisions of the LUA, is to declare such an act invalid, null and void, and of no effect. The Apex Court made this position of the law in the case of NIGERIAN ENGINEERING WORKS LTD. v DENAP LTD. (2001) 18 NWLR (Pt. 746) p.751 paras. C-D when it held that:
“By virtue of Section 5(1) of the Land Use Act, the Governor has the power to grant a statutory right of occupancy to any person in respect of any land in the state and under section 28 of the Act, the Governor has the power to revoke any such rights of occupancy granted to any person for overriding public interest which interest is defined under the section. Where the revocation is not in accordance with the provisions of the Act, such revocation can be set aside as invalid, null and void.”
The Apex Court was more direct in the above cited case, on the need for a Governor to exercise power of revoking right of occupancy in accordance with the Land Use Act, 1978 when it held:
“The purpose for which the power of revocation of right of occupancy was conferred on the Governor have been clearly stated in the Land Use Act, 1978. Any revocation for purposes outside the ones prescribed by the Land Use Act will be against the policy and intention of the Land Use Act and can be declared null and void by the Court. In the instant case, the revocation of the right of the 1st respondent was not done in accordance with the provisions of the Land Use Act. It is therefore invalid, null and void.”
In conclusion, it is my submission that the reason Governor Wike gave, as justification for revoking the SRO of Novotel Hotel, is not only wanting in law but lame, flimsy and unconvincing. Hence, such revocation does not have the knee cap to crawl with, neither does it have the buttocks to sit on, and as such, is bound to be “revoked” and set aside by a Court of competent jurisdiction, having regard to the provisions of the LUA and our judicial precedents on the subject-matter.
Nwora Ike Obiora, Esq., Associate, Oluwakemi Balogun (SAN) & Co., Lagos