Demolition of Structures in Kaduna State: How Legal is this Exercise?
Othe 9th of July, 2015, the Kaduna State Government (KDSG) issued a stop-work order on carve-outs land locations given out to occupiers by previous governments in public institutions which included, notably amongst others, Alhudahuda College Zaria, Rimi College Kaduna, and Government College Kaduna for the purpose of reclaiming or repossessing the lands. The KDSG alleged the encroachment on the lands belonging to institutions as reason for the notice. Pursuant thereto, a 21-days notice was issued to all concerned to vacate their houses or lands affected by the order to give way for demolition. In respect of Alhudahuda College Zaria, for instance, the notice expired on the 5th of August, 2015; and the demolition was carried out from the 6th to 7th of August, 2015. Others are waiting.
The demolition exercise was received with mixed feelings: some were in support, others were against; some questioned the morality of the exercise, others justified it; some questioned the timing, others agreed with it; some argued that this should not be the priority of a government that was just over 2 (two) months in office, while others argued that it should be; and others were indifferent etc. My brief here is to look at the legal propriety of the demolition exercise.
Those in support of the demolition exercise gave two additional reasons, apart from encroachment, to justify it; and they are: compulsory acquisition under the Constitution of the of the Federal Republic of Nigeria, 1999 and the Land Use Act, Cap L5, Laws of the Federation of Nigeria, and breach of the State town planning scheme under the Kaduna State Town and Country Planning Law, Cap 154, Laws of Kaduna State, 1991. I will look at these reasons seriatim.
Encroachment The Black’s Law Dictionary defines “encroachment” as to enter by gradual steps or stealth into the possession or rights of another; to trespass or intrude; to gain or intrude unlawfully upon another’s land, property, or authority. The synonym for “encroachment” is, therefore, “trespass”.
If encroachment was the reason advanced by the KDSG for reclaiming the lands, this would imply that the occupiers are trespassers. The supposition of this is that the occupants were either illegal tenants or tenants at will. This falls within the realm of recovery of possession of land or premises. See the case of J. A. ODUTOLA & ANOTHER v PAPER SACK NIGERIA LIMITED (2006) 18 NWLR (Pt. 1012) 470.
Was the KDSG entitled to resort to self-help after the expiration of the 21 days’ notice by moving in the bulldozers to out rightly demolish all the buildings and developments put in place by the encroachers? No, it was not entitled to do that.
We are of the firm view that at the expiration of the 21 days’ notice, the right that crystallised to the KGDS was not the right to resort to self-help to demolish the structures, but the right to issue summonses to the encroachers to commence legal actions for the recovery of the land or premises in accordance with the Recovery of Premises Law. In the case of CHIEF D. M. OKOCHI & 2 OTHERS v CHIEF AMUKALI ANIMKWOI & 2 OTHERS (2003) 18 NWLR (Pt 851) 1, the Supreme Court held thus:
“Certainly, self-help has no place in our civilized world as it is clearly against the rule of law in a democracy…Even if the property is built on the land of the respondents, the answer is not in self-help but in commencing a legal action to abate the trespass”.
In the earlier case of CHIEF EMEKA ODIMEGWU OJUKWU v GOVERNOR OF LAGOS STATE (1986) 2 NWLR (Pt 18) 621, the Supreme Court, per Obaseki, JSC, also held as follows:
“I can find no Constitutional or legal authority to support the action of the appellants. Indeed all the authorities are the other way. In the area where rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world, even in the third world, which proffers loudly to follow the rule of law, gives no room for the rule of self-help by force to operate…It is the duty of the Government to allow the law to take its course or allow the legal and judicial process to run its full course”.
Based on the foregoing, it was illegal and unlawful for the KDSG to resort to self-help to demolish the structures and forcefully eject the encroachers from the land situating Alhudahuda College. The KDSG can only do that through a Court Order obtained in compliance with the procedure set out under the Kaduna State Recovery of Premises Law.
Compulsory Acquisition Section 43 of the Constitution guarantees the right to acquire and own immovable property anywhere in Nigeria. Juxtaposed against this right is the power of the Government to compulsorily acquire the immovable property of an individual for overriding public interest under section 44 thereof and section 28 of the Land Use Act. However, this power is made subject to the payment of prompt and adequate compensation.
If KDSG advanced compulsory acquisition as the reason for the notice and demolition exercise, then it should have set up a Land Use and Allocation Committee under section 2 of the Land Use Act, or set up any other technical committee to advise, or recommend, or determine those occupiers with genuine and legitimate title documents granted to them by previous governments, compensate them first before re-acquiring the lands in line with necessary statutory and Constitutional provisions. Government is continuity; the acts or deeds of previous governments bind the current one. It would be preposterous to assume that all those that built on the lands are illegal occupiers. Those with genuine and legitimate title documents granted by previous governments had acquired a legal interest or estate in the lands which could not be revoked, nor could the structures they built thereon be demolished just like that without following the due processes enshrined in sections 28(2) (b), and 29 of the Land Use Act and section 44 of the Constitution. See the case of ATTORNEY-GENERAL OF BENDEL STATE v AIDEYAN (1986) 4 NWLR (pt. 118)
Based on the foregoing, the occupiers were entitled to adequate notice and compensation by the KDSG before their structures could be demolished. They were not compensated; and the 21 days’ notice given to them was not adequate. The demolition was therefore illegal.
Non-Compliance with Planning Scheme under the Kaduna State Town and Country Planning Law
Under section 28(1) of the Town and Country Planning Law, Cap 154, Laws of Kaduna State, 1991, the KDSG, through the Planning Authority, may at any time “remove, pull down, or alter, so as to bring into conformity with the provisions of the scheme, any building or other work which does not conform to those provisions, or the removal, demolition or alteration of which is necessary for carrying the scheme into effect or the erection or carrying out of which contravenes any provision of the scheme”.
Even if KDSG advanced noncompliance with the planning scheme as the reason for the demolition, we are still of the view that it was carried out without following the due processes laid down under the same Law as follows:
First, there was no report from the Planning Authority under section 4 of the Law finding, as a fact, that the occupiers breached the planning scheme in their respective areas; or that they did not obtain the requisite planning and development approvals. Section 28(1) applies where the occupiers did not conform to a planning scheme. How did KDSG determine, within 21 days, that all the occupiers did not conform to the scheme? Was there any technical committee, aside from the Planning Authority, set up to determine that? Did all the illegal occupiers fail to conform to the planning scheme?
Second, under section 4 of the Law, the approving officer of any scheme is the Governor of the State. Where a former Governor exercised his power under the Land Use Act and the Town and Country Planning Law to approve any scheme in public institutions, and the beneficiaries of this scheme were duly issued with the requisite title documents and development approvals, can a new Governor be entitled to employ the provisions of section 28 (1) of the Law to demolish their structures the way it was being done without following due process or rule of law? As we said earlier, government is continuity.
Three, assuming, but without agreeing, that the occupiers breached the scheme under the Law, the occupiers were still entitled to be given three (3) months’ notice, and not 21 days’ notice to have their structures removed or pulled down. See section 28(3) of the Law.
Four, under sections 34 and 38 of the Law, the KDSG can re-acquire the lands from the genuine and legitimate occupiers for purposes of a planning scheme, but subject to the payment of adequate compensations to them.
Last, under sections 44 and 46 of the Law, the KDSG, through the Planning Authority, may approach the High Court or Area Court (now Customary Court) to determine the legal status of an occupier of a land under a planning scheme.
In conclusion, much as we agree that the KDSG may reclaim, repossess or compulsorily acquire land; or demolish, remove or pull down any structure that fails to conform with any planning scheme, or fails to obtain or comply with any building approval, it must follow the laid down due processes or rule of law before it can do so. However, KDSG failed in this respect. Due process is a rule of substance which is not open to the whims and caprices of the Governor. See ATTORNEY- GENERAL OF BENDEL STATE v AIDEYAN (supra). A government that has its anchorage on rule of law must uphold the rule of law; and not the rule of might.