Essay, Featured
By Mike Ozekhome, SAN
INTRODUCTION
LAST week, we took a critical view about this matter that has, expectedly, generated national hoopla. Today, we continue our discuss on same.
RIGHT TO OWN LAND
It is arguable that the herdsmen, who have been issued quit notice by Governor Akeredolu are actually being arbitrarily sent away from lands over which they have since legally acquired title and possession over. Where it is proven that some herdsmen have peacefully lived on their occupied lands for a significant time without committing crimes, then they are deemed to have a bonafide title to such lands occupied by them under the law. The case of IDUNDUN AND ORS V. IKUMAGBA AND ORS (1976) 9-10 S.C. 227, reflects this legal position, as it posits five ways in which title to land can be proven:
- By traditional evidence in the form of traditional history.
- By production of documents of title
iii. By proving acts of ownership and possession over a sufficient length of time which are numerous and positive enough as to warrant the inference that the person is the true owner.
- By proving acts of long possession and enjoyment of land; and
By proof of possession of connected and adjacent land, in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
The above five ways to prove title to land are not mutually connected. Ergo, proving one of these ways is sufficient enough to prove title. See the case of BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOIYI & ORS (2011) LPELR. Where any of these are proved, the government’s order could be successfully challenged as constituting a breach of those herders’ title or possessory rights. However, section 28 of the Land Use act bestows title over all lands of a state on the Governor, to hold in trust for the people. Consequentially, Governor Akeredolu can lawfully give out lands in a state, just as he can also lawfully take them back. This is the dilemma – striking a delicate balance between Nigerians’ right to live and carry out business wherever they desire, and the need that they live peacefully, without criminal tendencies, in such places. Can the individual ownership or possessory rights of these herders override the need for the Governor to maintain law and order as the Chief Security Officer of his state (section 215(4) 1999 Constitution); and to give maximum security to his people (section 14(2)(b) 1999 Constitution)? I think not.
But, can he do so by fiat, without resort to due process through a court of competent jurisdiction? I think not.
FREEDOM OF MOVEMENT
The Constitution of the Federal Republic of Nigeria, 1999 (as altered) provides the citizen’s right to freedom of movement throughout Nigeria. He is also allowed to reside in any part thereof. Section 41 (1) of the Constitution of the Federal Republic of Nigeria, in very clear and precise words, provides as follows:
“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom”.
This fundamental right is widely applied, as citizens are thereby permitted to move about and across all corners, nooks and crannies within Nigeria, as was aptly held in the case of OKAFOR v. LAGOS STATE GOVT & ANOR (2016) LPELR-41066(CA). It is of no effect whether the citizens live where the land is located, or whether they are mere nomads. This position has been clearly reiterated by the apex court in IBRAHIM V. MOHAMMED (2003) FWLR (PT. 156) 902, where Lordship Kalgo, JSC, stated thus:
“The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live”.
Do you hear that please?
See also the case of AROWOLO V. AKAPO & ORS (2002) LPELR-7063(CA).
The only exception/limitation to this is, where restrictions have been placed on the movement or residence of such a person, if he commits a crime, or is suspected to have committed a crime with a view to ‘preventing him from leaving Nigeria’. Thus, applying the literal rule, this limitation appears to apply in an instance such as the present case, where the crime is committed, or is expected, or foreseen, as was Governor’s Akeredolu’s reasons for tackle the increasing spate of violent crimes perpetrated by herders in the forest reserve of Ondo State.
The Governor is legally correct and competent to demand that herders should register for proper identification. Why will they not want to do this, when this will actually help the genuine herders to be separated from the violent and criminally-minded ones, such as kidnappers and armed bandits? This registration will determine how many herders are actually operating in the forest reserves and also separate the authentic herders from invading terrorists who spill in from neighbouring countries.
WHAT MUST AKEREDOLU DO TO QUIT THE HERDERS?
Legally speaking, the right channel available for Governor Akeredolu, in my humble legal opinion (if he must demand their exit within 7 days), is for the Governor to file an action at the Federal High Court, Akure, stating the reasons as to his request to oust and quit the herdsmen from the Ondo forest reserves. His reasons are strong and cogent enough, and courts would readily agree with him. This will enure his acts with legal and constitutional imprimatur; not resort to self-help. Freedom of movement, in any case, is not absolute; though courts of law in Nigeria rarely grant applications that breach the fundamental rights of citizens. In KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287(CA), the issue for determination was whether the rights to personal liberty and freedom of movement as guaranteed by the Constitution of the Federal Republic of Nigeria, are absolute. There, EKO, J.C.A. (as he then was), in pages 44-45, paragraphs F-E, concisely and unambiguously stated:
“The courts, including the Federal High Court, know the law and would not do things to whimsically undermine the rights of parties guaranteed by the Constitution. The rights to personal liberty and freedom of movement, guaranteed respectively by sections 35 and 41 of the 1999 Constitution, are not absolute. Section 41 (2) (a) of the Constitution says that the right to freedom of movement may be deprived under a law that is reasonably justifiable in a democratic society that imposes restrictions on the “movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria”. An application for enforcement of a party’s fundamental right presupposes the right has been, is being or is likely to be violated otherwise than in accordance with the procedure permitted by law. That argument will be defeated when it is apparent that the right has been deprived of in accordance with the procedure permitted by law.”
Consequently, once the Governor can demonstrate to the court that the peace and order of Ondo State have been serially breached by the herders, the constitutionality of Governor Akeredolu’s order will not be faulted by a court of law; and same will be held to be constitutional; and not unconscionable, arbitrary, oppressive, discriminatory, illegal or ultra vires his gubernatorial powers. This is the best route to follow.
FREEDOM FROM DISCRIMINATION
In discussing this fundamental right, I would refer to the Punch Newspaper publication of 19th January, 2021, in which the Senior Special Assistant to the President on Media and Publicity, Garba Shehu, replied Governor Rotimi Akeredolu’s order thus:
“Governor Rotimi Akeredolu, a seasoned lawyer, Senior Advocate of Nigeria and indeed, a former President of the Nigerian Bar Association, has fought crime in his state with passion and commitment, greater sensitivity and compassion for the four years he has run its affairs and, in our view, will be the least expected to unilaterally oust thousands of herders who have lived all their lives in the state on account of the infiltration of the forests by criminals”.
I completely agree with this opinion. It is important to note that not every Fulani herder living in Ondo state is a criminal. Some, or many, who have lived there for decades, do not fall into the category of the rampant, blood-lusty “herdsmen” terrorizing citizens and states in Nigeria. Consequently, the categorization of every Fulani within the herdsmen bracket, or the categorization of every and all herdsmen in the blood-lusty herdsmen bracket will, in my humble view, appear to be blanketly discriminatory. This is contrary to freedom from discrimination as guaranteed by section 42 of the 1999 Constitution. It is a court of law that can sift the chaff from the seeds. I do not agree with the tarring of a whole race or occupation with the besmearing paintbrush of criminality. Let me give an example: if some Igbo or Edo or Yoruba indigenes (permit my example) living outside their states, are fond of committing crimes in the Sagon Gari area of Kano City, it will be wrong, unconstitutional and even immoral, will it not, to term Igbos, Edos and Yorubas living in Kano as criminals who must be evicted within seven (7) days. What about the majority of the innocent ones, many of whom are living in Kano in their third generation? My simple thesis is that criminals must be separated from the innocent ones. I therefore agree with the compulsory registration exercise introduced by Akeredolu, to sift the good from the bad; the beautiful from the ugly; the clean from the tainted, and the innocent from the guilty. (To be continued)
THOUGHT FOR THE WEEK
“I believe it could very well be unconstitutional to ban people. We are a country of immigrants, but we have to know who’s coming in. They need to come in legally. And we need to be sure that we have been able to have them satisfy the criteria that we set for them to come into our country”. (Jan Brewer).
LAST LINE
Fellow Nigerians, kindly follow me every week, to enable us jointly put our heads together on the task of re-engineering Nigeria. We shall accomplish this right here on “The Nigerian Project”, by Chief Mike A. A. Ozekhome, SAN, OFR, FCIArb, LL.M, Ph. D, LL.D
– Feb. 01, 2021 @ 15:05 GMT |
Tags: The Constitutionality or otherwise of Governor Akeredolu’s 7-Day quit order on herdsmen in Ondo (Part 2)
