Gov. Wike’s Revocation Of Novotel Hotel’s Statutory Right Of Occupancy: An Act In Search Of Justification? By Nwora Ike Obiora Esq.

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 commentator belongs to or the lens used by such commentator in viewing it. To the members and supporters of the People’s Democratic Party (PDP), Governor Wike deserves another National Award 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 as the Governor of the State. Whatever the accusations and counter-accusations by the ‘hailers’ and ‘wailers’ in justifying 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. In order to arrive at the desired result, set out to be achieved by the said dissection, x-ray and juxtaposition of the act of the Governor, 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?

Land matters in Nigeria are governed by the Land Use Act (LUA)1978, Cap. L5 Laws of the Federation of Nigeria, 2004 and as such granting and revocation of SRO are 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” (emphasis mine). 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 see 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 when it 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; (f)     for obtaining control over land required for or in connection with mining purposes; (g)     for obtaining control over land required for or in connection with planned urban or rural development or settlement; (h)     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 pain 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 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. The crime of election rigging no doubt is a cankerworm that has eaten deep into the fabrics of our nascent democracy and must be condemned in its strongest term 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 an 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, see the case of Iko v. State (2001) 14 NWLR (Pt. 732) 221. Will Governor Wike’s action not 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 it 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 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 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 undertone to such action. Perhaps, his excellency should have stylishly premised the revocation on the need to build 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 reason for such unfounded action. Citing election rigging center as reason to revoke SRO appears flowering yet unconvincing as such is lame and unfounded in law. The Governor is expected to know better than this! Yes, I expected that from the Governor, having known that he is not just a conventional Nigeria Governor but a trained lawyer who is also married to a Judge. The attitude of the Court towards any revocation of SRO which is done outside the provisions of the LUA is to declare such 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 1^st 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 with and as such is bound to be “revoked” and set aside by a Court of competent jurisdiction having regards to the provisions of the LUA and our judicial precedents on the subject matter. Nwora Ike Obiora, Esq. is an Associate at Oluwakemi Balogun (SAN) & Co., and can be reached through nworaikeobiora@yahoo.com, Twitter: @Ike_Obiora]]>