The demolition by Rivers State Gov't of Prodest & Etemeteh hotels, both located at Eleme, Rivers State, on 10/5/2020, has attracted a deluge of criticisms, especially, in the media. Many unsavoury comments came from the camp of partisan enemies of Gov Wike, who have become awe-stricken & befuddled at the excellent performance of the Governor since his assumption of duties in the State. A couple of these uncanny hirelings came from a bunch of uninformed critics, including some of my professional colleagues who were fast becoming what I termed " social media advocates". It is my intention in this terse piece to put straight, the records (as known to me), concerning the issues surrounding the said demolition, whilst also contributing to what I consider as the correct legal position to the demolition saga.
Generally, emergency powers of the President can be found in s.305 of the Nigerian Constitution 1999(as amended), and more applicably, for the purposes of the present discourse, under s.305(3)(e) of the said Constitution.
The said s.305(3)(e) of the Constitution guarantees the power of the President to declare a State of emergency in any part of Nigeria, where inter- alia, there is occurrence of imminent danger, disorder or natural calamity within any part of the Country. Certainly, the present rapidly life-devouring covid 19 pandemic, falls within the purview of the provisions of s.305(3)(e) of the said Constitution as a dangerous & disastrous infectious disease.
However, the legal authority of the President to take extra-ordinary measures during public health crises in Nigeria, is based on His emergency powers to declare "a State of public health emergency" under the said 1999 Constitution,(as he has so done), as well as under the powers exercisable by the Executive vide relevant Health Authorities in Nigeria, pursuant to the 1926 Quarantine Act,(now LOFN CAP Q2 Revised Ed, 2004). This Quarantine Act remains till date, the primary law governing matters concerning public health crises in Nigeria, particularly, quarantinable diseases.
The Quarantine Act, gives the Executive arm & their relevant Health Authorities, ample powers to handle health crises in Nigeria, especially, the infectiously-dangerous covid 19 pandemic and its attendant bioterrorism.
The Quarantine Act in its Ss.2,3 & 4, permits the President to respectively declare, any dangerous infectious disease, of the covid 19 typology, "a dangerous infectious disease"; declare any part of the Country "an infected area" & make Regulations aimed at control of the transmission of the disease.
Very pertinent to the present subject in focus, is s.8 of the Quarantine Act. It empowers a State Governor(like Gov Wike), to make adequate Regulations(enforceable within the State), where the President has not made similar Regulations applicable to that State, for the purpose of carrying out the objects of the Quarantine Act.The main object of the Quarantine Act is to stamp out the spread of any dangerous infectious disease from the Country . Other ancillary objects deducible from the provisions of this Act, include; surveillance of the dangerous infectious disease, prevention of its transmission within parts of a State, spelling out duties of relevant Authorities & officials, specifying breaches, (which aid the spread of the disease), as well as sanctions accompanying the said breaches. It is important to note that, President Buhari has not made any comprehensive Regulation(s) or proclamations etc, affecting all the States in Nigeria, directly touching on all aspects of the key areas in the fight against the spread of covid 19.
This situation has made many States in the Federation to take the" destiny of their covid 19 fight" in their respective hands, thereby leaving the said states to make their various Regulations, proclamations, Executive Orders, etc, in respect thereto.
What many canvassers on the side of the Eleme hotel owners, including some of my professional colleagues have largely argued, is that, the said demolitions did not accord the hotel operatives fair hearing & also deprived them of the right to ownership of immovable property, contrary to what is envisioned in chapter 1V 1999 Constitution. I also noticed that one or two persons made somewhat remote & dismal arguments in support of the said hoteliers based on the provisions of s.45 1999 Constitution(supra).
Without a blink, i submit that it remains a Constitutionally- guaranteed Fundamental right to ownership of immovable property by every Nigerian in any part of the Country, as contained in s.43 off the 1999 Constitution. By s.44 (1) thereof, inter- alia, any compulsory acquisition of an immovable property, like the said hotels, must be adequately compensated.
However, by s.44(2)(f), of same constitution, any general law, including for e.g, the said Quarantine Act, the Public Health Laws of the various States, Regulations, declarations, Executive Orders (that have force of law),etc, made for the purpose of.. taking possession of property.. in a dangerous state or is injurious to the health of human beings.."(see again s.44(2)(f) 1999 Constitution), cannot be invalidated by the earlier provisions of s.44(1)(a)(b) of the 1999 Constitution.
It is also the position here that s.44(2)(f), cannot be read subject to any other provisions of chapter 1V of 1999 Constitution, including that of s.45 of the said Constitution, in the absence of any Constitutional provision demanding so.
The law is sacrosanct to the effect that, It will be intolerable for Courts to ignore clear and & unequivocal provisions of the constitution. See the case of Ojokolobo v Alamu(1987)3NWLR ( Pt6)377 at 417.
It must be pointed out that aside from s.8 of the Quarantine Act which grants licences to State Governors to make laws, including Regulations ( and even Declarations & Executive Orders)etc, during " public health emergencies ", which may involve extra-ordinary measures that may violate fundamental rights, various State Public Health Laws in Nigeria also have Regulations, Executive Orders, etc, springing out therefrom, validating for e.g, the demolition of buildings of defiant defaulters of Public Health Laws & other shades of punishments for the said violators.
For instance, the Public Health Law of Rivers State, cap 106, LORN vol 5 1999, which established a public health regime in the state, among other things, provided for " Declaration of Infectious diseases Regulations"& also provided for appropriate sanctions against defaulters of the said Public Health Law."In casimili casu"(ie in similar situation/ case), Cross River State has identical provisions in its Public Health Law dealing with the ".. power of a health officer to order for the destruction of a house, building or anything.."in the overriding interest of residents of the State. See s.8 of the State's Public Health Law.
It is trite that the said Quarantine Act, Public Health Laws of the various States, including Regulations etc, made pursuant to these legislations are existing laws within the meaning of s.315 of the1999 Constitution, & ought therefore, to be given the necessary legal effect. After all, there is a strong presumption in law, that an existing law is constitutional and its provisions are" reasonably justifiable" & necessary in the society. See the decision in Obeya v Soluade (1969)NRNLR 47 at 52.
It is long settled that a State Governor can validly make a "Regulation" or issue an Executive Order, pursuant to an extant substantive legislation or in the exercise of the powers conferred on him by the legislature. See the decisions in Cheranci v cheranci(1960) NRNLR 65 at 67. See again, s.8 Quarantine Act(supra), & the case of Osadebay v AG Bendel State (1991) 1NWLR ( Pt 169) 525 at 599.
Based on the dire need to frontally combat the rapidly- vanquishing covid 19 menace, Gov Wike signed into law, a total of 9 Regulations, all conglomerating to establish a firm socio- political & legal regime to deal with the covid 19 scourge. See for eg, Rivers State Regulation No 2 & that of Regulation No 6, 2020 in particular.
Following the furore generated in some parts of the legal community, that the Eeecutive Orders made by Gov Wike, which gave vent to the demolition of the said hotels were unlawful & ultra vires the Governor, i take the contrary view herein, that this position is not quite correct. In law, there are "Executive Orders" that are in the mould of mere "directives" or mere "Orders" , mere "Declarations" or just pronouncements emanating from the President or Governor of a State, not made pursuant to any written law in force.
However, an Executive Order may require certain actions to be taken pursuant to a provision under an existing legislation. For instance, the specific Executive Order issued by Gov wike for the demolition of the said Eleme hotels, were made pursuant to, & for the purpose of the enforcement of the said Rivers State Public Health Regulation No 6 of 2020. This specific Regulation ( which was applicable concerning the demolition of the notorious hotels), was not a mere Executive directive made without authority under any written law.
I strongly hold the considered view, that the said Executive Order of the Rivers State Gov't enjoys not only the protection of the said Regulation No 6, but also the State's Public Health Law and s.8 of the Quarantine Act. Such an Executive Order has the force & effect of law.
In the United States for instance, it was held by the courts that the Executive Order issued for the protection of wetlands was an operative law. See the illuminating decision in Cougar Business Owners Association v State, 97wn.2d 466, 474, 647 P2d 481(1982)
To this end therefore, the decision of the Nigerian Court of Appeal(Lagos division) in Faith Okafor v AG Lagos State (2016)LPELR-41066, regarding the Executive Order made by the Gov of lagos state restraining movt of people during sanitation days in lagos, is inapplicable to the circumstances of the said Executive Order of the Rivers State Gov't in the instant matter.
Again, the decision in the criminal case of Aviomoh v COP & Anor(2014)LPELR-23039, is not applicable to the Rivers State case at hand, both in facts, issues involved & the law; more so, in view of the hallowed savings contained in the said s.44(2)(f) 1999 Constitution. I trenchantly reiterate the fact that, the immediately- cited provisions of the constitution cannot be read subject to the provisions of s.45 of same constitution.
On the issue of whether there was fair hearing given to operators of the Eleme hotels before they were demolished by Rivers State Gov't, i will not hesitate to return the answer in the affirmative.
Shortly after the making of the said Rivers State Public Health Regulations between february and march this year, in a bid to checkmate the covid 19 pandemic, the State Gov't set up Task Forces both at the State & local Gov't levels. Membership of these Task Force Committees comprised of eminent stakeholders, including traditional rulers, the clergy, local Gov't chairmen, CDC chairmen, women & youth leaders, senior health offials, etc .By the end of march, 2020, the various Task Force Committees have gone round Rivers State, enlightening residents of the State about the dangers of the pandemic & the preventive measures to contain its community transmission or spread. By this period also, the said Committees had gone round the State in monitoring compliance with the shut down order handed down to all operators of hotels, guest houses, night clubs, beer parlours, pepper soup joints, ete, in the state.
By the third week of April, 2020, there was virtually full compliance with the said shut down order on hotels etc.
Unfortunately, by Tuesday 28/5/2020, information filtered to the State covid 19 Task Force, that the said two hotels at Eleme were still fully operational. This made the committee to formally serve written notices on operators of the said hotels, giving them 7 days( from date of receipt of the respective notices), to cease further operations thereat, or face the sealing up and or demolition of same.
Again, the defiant hoteliers ignored the notices, & never made any representations to ventilate any reasons as to why they defied the notices/ orders of the Task Force Committee The said Committee had powers to entertain complaints & could refer issues therefrom, to a higher authority for further directive.
Most recklessy confrontational, is the fact that whilst the entire Rivers State was on the orders of the State Govt, on lockdown, the said hotels were bubbling with full hotel activities, with ladies of easy virtue, swinging their stripped naked bodies before a large audience(especially at the prodest hotel).
The attempt by the Rivers State Task Force Committee to seal up the Eleme hotels, beginning with prodest hotel, was gruesomely repelled by a weird army of thugs, led by a former Eleme PDP youth leader. The said thugs freely used assault rifles ( AK 47), machetes, clubs, raw iron objects etc, to brutally attack & inflict grievous injuries on the said committee members. Some of these committee members are still in critical conditions in different hospitals in the state. Very sadly, one of the Committee members died about 5 days ago owing to complications arising from injuries sustained during the prodest hotel attacks.
Certainly, no responsible Gov't the world over, that will not take appropriate steps, including employing the "doctrine of necessity",(as the situation so demands), for the purpose of the enforcement of its lawful Regulations (at the peril of having its law enforcement officials killed or grievously harmed.)
The constitutional provisions on fair hearing(s.36), impose an ambidextrous stance on this issue, as both parties must have access to justice. More importantly, it is a fundamental requirement of fair hearing that a person accused of wrong doing, must be informed about same, before any action detrimental to him can be taken. See the decision in Aiyetan v NIFOR(1987)3NWLR (Pt 59),48.
From the forgoing, it is obvious that, the said Eleme hoteliers had proper notices of their wrong doings & were also aware of the consequences for their nauseating misconducts..
Gov Wike's exhibition of dogged patriotic trait in the fight against the spread of covid 19, an invisibly- ravaging pandemic, including all the measures he has so far taken to keep the enemy disease at bay in Rivers State, have the the support of virtually all the citizens and residents in the state.
In the premises therefore, i submit that on this vexed issue of the demolition of the said Eleme hotels, the Rivers State Gov't did not act "motus proprio"( ie on her own accord), but acted "ipso jure"(ie by operation of law).
On the whole, i caution that all the divergent views expressed so far on the legality of the action of Rivers State Gov't, regarding the issue of the demolition of the said hotels, are mere agglomeration of arguments weaved around a moot point, until pronounced upon by the Court's.
Chief(Barr) Emma Nyema Wonodi