By Osita Okoro, Esq.
Petty traders in the informal sector of any economy are critical to economic development. Mr. Chukwuemeka Eze is a petty trader in Ogige market in Nsukka town of Enugu State. He has been trading on perishable goods in that Ogige market for over two decades. It is from his trade that he takes care of his wife and six children.
His annual profit is not more than 120,000 Naira. Sadly, that business is about to come to an end due to a sudden 72-hour Notice given to all traders in Ogige market in Nsukka by the Governor of Enugu State, His Excellency, Peter Mbah, to vacate the market premises as the market has been marked for demolition.
On 22nd May, 2024 agents of His Excellency Governor Peter Mbah stormed the Ogige Market, which houses about 10,000 traders situate at Nsukka in Enugu State and declared that traders were required by the state government to vacate and relocate their shops within 72 hours, to a very small space in another part of Nsukka town called Aku Road. These agents proceeded to inscribe the said notice on the walls of the market.
Here are the irrefutable facts that we know as at the time of this piece. In January, 2024, the Enugu State Government (ENSG) arbitrarily imposed an E-ticket levy of N27,500.00 on each trader in Ogige Market, Nsukka, which most, if not all the traders paid in compliance. This e-ticket levy was to remain valid till December 2024 before it expires. Note that this levy used to be the duty of the Nsukka Local Government Council to collect at a much lower rate. It is therefore shocking that after collecting this e-ticket levy in January, 2024, the same Enugu State Government would come back to the traders to give a very short notice of 72 hours to vacate their shops. This is tantamount to a breach of trust and confidence by the Enugu State Government. Governance and leadership are about trust. There is a trust deficit between the Nsukka Ogige traders and the Enugu State Government.
It is important to place on record that the Enugu State Government failed to comply with the requirements laid down by both the Land Use Act and International Treaties in the way in which it has been handling the proposed demolition of Ogige Market in Nsukka. The ENSG failed to engage and negotiate with the Executive members of the Ogige Market Traders Association (OMATA). The ENSG claims it met with the Chairman of OMATA secretly but such a secret meeting is not what the law and various treaties envisage. The 72-hour notice is too short and insensitive. Till date, there has been no well-organized meeting and discussion about this impending demolition and relocation that would address the needs and wellbeing of the shop owners and traders.
Traders were simply ordered to vacate and relocate to Aku Road Market, which is a small space that cannot accommodate even one-tenth of all the traders. Even the shops at Aku Road have been bought by some Enugu State politicians and ENSG proxies to let out at exploitative rates. Simply put, the Aku Road Ultra-Modern Market is not fit for purpose and not suitable to accommodate the traders. Worse still, the traders cannot afford to buy or pay for the few shops available in the proposed new location.
The Enugu State Government claims it wants to build a park terminal. In the concept of overriding public interest, a big market like Ogige Market in Nsukka adds higher public interest value than a Park Terminal which could be located in other locations in Nsukka with large expanse of land. Unfortunately the ENSG has failed or refused to consider other options. The ENSG has also failed to consider appeals from highly-placed Enugu State traditional rulers, elders and even the Catholic and Anglican Bishops of Nsukka Diocese.
It is crystal clear that the Governor of Enugu State under the guise of the exercise of powers vested on him under the Land Use Act 2004 (“the Act”), intends to forcibly evict the over 10,000 occupiers of the Ogige market. This executive move by the Governor is arbitrary, an abuse of power and against the letter and spirit of the Constitution, the Land Use Act and international best practices for three reasons.
Firstly, it is against the laid down procedure for revocation and compulsory acquisition of property under the 1999 Constitution and under the Land Use Act. The Land Use Act 2004 (originally promulgated as the Land Use Decree No. 6 of 1978) is a significant piece of legislation in Nigeria that regulates the tenure and administration of land. Although the Land Use Act grants the Governor of a state significant authority to administer and control land within its borders, it does not explicitly authorise the demolition of buildings. Nevertheless, the Governor’s authority to order demolitions may be indirectly affected by specific provisions of the Act bordering on land control and management. Section 1 of the Land Use Act vests all land in each state in the Governor, who is responsible for its administration for the use and common benefit of all Nigerians, and retains the land in trust for the people.
Section 28 of the Act empowers the Governor to revoke rights of occupancy if the public interest in appropriate circumstances. Direct authority to demolish buildings is typically granted by other laws, such as the Environmental Impact Assessment Act, the Urban and Regional Planning Law, or state-specific urban planning and building control regulations. The Governor or authorised state agencies are frequently granted explicit powers to demolish buildings under these laws.
It is pertinent to state the powers of the Governor to revoke rights of occupancy are not left unchecked. A revocation of rights of occupancy must comply with certain laid down requirements before such revocation can be clothed with validity. These requirements include (a) purpose (b) valid notice to occupiers of intention to revoke (c) adequate compensation and resettlement of occupiers.
With reference to purpose of revocation, it is conventional law that the purpose must be for the overriding interest of the public. Section 28 (2) and (3) of the Act provides that revocation of a right of occupancy for public purposes, mining, or hydrocarbon pipelines, among other things, are considered overriding public interests.
The Supreme court in the case of Messrs Singoz & Co. (Nig.) Ltd. v. U.M. Co. Ltd. (2022) 18 NWLR (Pt. 1862) 203 held:
“… overriding public interest in the case of a statutory right of occupancy means the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of the Act or of any regulations made thereunder; or 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.” Consequently, where the purpose of a revocation is not for overriding public interests, such revocation is null and void.
Also, a valid notice in advance to occupiers, of an intention to revoke rights of occupancy is crucial and goes to the root of a valid revocation. The Supreme Court in the case of CIL Risk & Asset Mgt. Ltd. v. Ekiti State Govt [2020] 12 NWLR (PT 1738) 225 on the purpose of revocation notice elucidated thus:
“…The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In revoking a right of occupancy, the title holder is not only entitled to the notice of the proposed revocation and the public purpose for the revocation of his title, he is also entitled to be heard on the proposed revocation of his title.”
Section 28 (6) of the Act provides for the ingredients of a valid notice of revocation and the need for effective service of notice on a occupier or holder in line with the provisions under section 44 of the Act, which stipulates that a holder be served personally, by leaving the notice at the usual or last known place of abode of that person or by sending the notice in a prepaid registered letter addressed to that person at his usual or last known place of abode and in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid letter addressed to the secretary or clerk of the company or body at that office and where it is not practicable to ascertain the name and address of the holder or the occupier of land, then the notice may be addressed to the person as “holder” or “occupier” and by delivery to a person on the premises. Where there is no one on the premises to take delivery of the notice, then it may be affixed on a conspicuous part of the premises.
Failure to serve notice of revocation on a holder invalidates the revocation. The Supreme Court, in Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132 held:
“The requirement of giving a notice of revocation to a holder of the right of occupancy and the receipt of such notice is mandatory and failure to give that notice will render null and void an order of revocation. Any revocation which does not comply with the provisions of section 28 of the Land use Act is invalid.”
Compensation is an integral part of the process of compulsory acquisition of land in Nigeria. Its importance cannot be overemphasised, as a failure to compensate the occupier renders the acquisition a nullity. Section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that no movable or immovable property may be compulsorily taken or acquired in Nigeria unless by law. Such law must ensure rapid compensation and allow claimants to reach a court, tribunal, or authority having jurisdiction in that portion of Nigeria to assess their property interest and compensation amount.
Compensation is provided for under section 9 of the Act. It is trite that where a right of occupancy is revoked, the holder will be entitled to compensation which is determined by the value of the unexhausted enhancements made to the land. On this, the Supreme Court, in Amale v. Sokoto Local Govt. (2012) 5 NWLR (PT 1292) 181 held:
“By virtue of section 28(1), (2)(b), (6) and (7), and section 29 of the Land Use Act, Cap. 202, Laws of the Federation of Nigeria, 1990, the Governor of a State has power to revoke a person’s right of occupancy for overriding public interest and the duty to pay compensation for such revocation.”
Also, it is pertinent to state that these requirements are intertwined. A revocation will not be valid in the absence of any of the requirements. The Supreme Court in the above cited case of CIL Risk & Asset Mgt. Ltd. v. Ekiti State Govt couched the following questions which ought to be answered in the affirmative regarding a valid revocation of occupancy. Their Lordships of the Supreme Court held:
“The germane and decisive questions to be posed, with a view to determining the validity, vel non, of the revocation of a right of occupancy under the Land Use Act are: (a) Was the titleholder served with a notice of revocation of his right of occupancy? (b) Was the public purpose or overriding public interest for such revocation spelt out in the notice? (c) Did the acquiring authority revoke the holder’s title in the land, and thereupon reallocated same to a private individual or private entity? (d.) Was the revocation signified under the hand of a public officer duly authorized in that behalf by the Governor? (e) Was the titleholder heard on the proposed revocation of his title? Save for question number (c) that must be answered in the negative to render a revocation of a right of occupancy valid, if the answer to any of the other questions is in the negative, the revocation becomes invalid, ineffectual, null and void”
From above, a review of the approach taken by the Governor of Enugu State for demolishing the Ogige market demonstrates an utter disregard for the very stipulations from which he derives this authority. No provisions were made to compensate the occupiers of Ogige market, nor were they served a valid notice in advance of the Governor’s intention to revoke.
Secondly, the Governor’s actions are in violation of the principles and guidelines of national and international human rights treaties and articles to which Nigeria is a signatory. The following principles and guidelines are included: the prohibition of forced evictions, fair notice and compensation for affected persons, alternative housing or resettlement options, human rights impact assessment in advance of eviction, access to legal remedies, and judicial review. These principles are enshrined in article 25 (1) of the Universal Declaration of Human Rights (UDHR), Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 14 of the African Charter on Human and People’s Rights (ACHPR), and the National Human Rights Act, which establishes the National Human Rights Commission to promote and protect human rights, including the right to housing, all enshrine these principles.
These principles and guidelines include prohibition of forced evictions, fair notice and compensation for affected persons, alternative housing or resettlement options, human rights impact assessment before eviction, access to legal remedies and judicial review. These principles are enshrined in Article 25 (1) Universal Declaration of Human Rights (UDHR), Article 11 (1) International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 14 African Charter on Human and People’s Rights (ACHPR) and the National Human Rights Act, which establishes the National Human Rights Commission to promote and protect human rights. None of these important and necessary principles and guidelines were taken in to consideration before the quit order to traders.
Thirdly, it is a universal principle that public officers are obligated to exercise their discretionary powers within the confines of the law. The Supreme Court, in the case of Margret Stitch V. Attorney-General of the Federation & Minister of Justice (1986) 5 NWLR (PT.46) 1007 emphasized that public officers may possess discretionary powers; however, these powers must be exercised within the confines of the law and must not be capricious or arbitrary. The court ruled that discretionary powers must be exercised in good faith, with due consideration for the rights of the individuals impacted by such decisions. The significance of accountability and transparency in the exercise of discretionary powers by public officers was underscored by the decision, which aimed to prevent abuse and guarantee fairness and justice. This principle emphasises the necessity for public officers to conduct themselves in a manner that is not oppressive or unjust, as well as legally and reasonably.
The principle of fairness in public administration, was highlighted in the English case Bradbury V. Enfield London Borough Council [1967] 1 WLR 1311, where the English Court reinforced the necessity for public authorities to follow established procedures and act in a manner that is just and transparent. It is imperative that this principle be upheld to prevent the adverse impact of public body decisions on individuals without proper consideration and due process.
In Bradbury, the primary concern was the Council’s failure to adhere to statutory procedural requirements prior to making a substantial decision to terminate a school. It was emphasised by the court, that, public authorities are obligated to adhere to the regulations and procedures established by statute, and that disregarding these requirements can result in the invalidation of decisions.
A cursory review of the intentions behind the Governor of Enugu State’s actions and manner of approach adopted towards dislodging the occupiers of Ogige Market, undoubtedly demonstrates an abuse of the exercise of the Governor’s discretionary power to revoke rights of occupancy. The Governor’s actions are in no doubt akin to the Biblical Saul’s journey to Damascus. The question remains: Will the Governor retrace his steps just like the Biblical Saul did?
Conclusion
In conclusion, Governor Peter Mbah’s actions concerning the intended demolition of Ogige Nsukka Market in Enugu State under the guise of invoking his powers under the Land Use Act, is a clear violation of the legal and procedural requirements that were designed to safeguard property rights and guarantee fairness in public administration. The forced eviction of more than 10,000 traders without adequate notice, compensation, or compliance with the statutory requirements of the Nigerian Constitution and the Land Use Act, is not only illegal, but also violates national and international human rights standards. It is essential that such actions be challenged and rectified.
It is interesting to note that a public interest lawsuit, The Registered Trustees of Law Hub Development and Advocacy Centre & Anor. V. The Governor of Enugu State & Anor. (Suit No. N/73/2024), challenging this brazen abuse of power has already been filed at the Nsukka Judicial Division of the Enugu State High Court.
Among the reliefs sought in the action, is an order of injunction “restraining the Respondents, whether by themselves, their agents, privies or otherwise howsoever from further harassing, intimidating, trailing, scaring away the traders from Ogige Market Nsukka, from their shops….”
The Enugu State Government has shown failure of leadership in handling the proposed demolition. The ENSG has handled the process in a chaotic, insensitive and dictatorial manner which is reminiscent of the imperial dictatorship and persecution Nigerians experienced during the Military era in Nigeria. The ENSG has shown apparent lack of empathy and emotional intelligence in handling this matter.
This is a democratic society. The primary responsibility of government is the protection of lives and property of the people. In Nsukka local government area of today, many traders are losing their lives and limbs because their businesses and sources of income have been stopped by the same government that is supposed to protect them. This action/policy of ENSG is nothing short of persecution, which can be likened to the persecution of the old Saul in the Bible before his conversion on his way to Damascus to persecute Christians. The ENSG has here again embarked on another journey to Damascus, which is Ogige Nsukka in this context to persecute Ogige Market traders.
The ENSG is on a voyage of wide and arbitrary exercise of statutory powers under the Land Use Act. The power of the Governor to act in the overriding public interest is not absolute. The Governor has to consider many factors, take some measures, consider the economic and social effect, negotiate compensation, give adequate notice etc. A cornucopia of decided cases and international treaties have elucidated the principles that persons occupying public offices and who are in position of authority have a duty to act fairly and reasonably. The ENSG has failed the test of fairness and reasonableness.
Therefore, I call on the ENSG to stay action on the proposed demolition for more stakeholders’ engagement and discussions. Governor Peter Mbah should not waste this crisis. Leadership is about value addition and welfare of the people. It is time for him to show leadership and do good.
• Osita Okoro is a lawyer from Nsukka Local Government in Enugu State and can be reached on 08033748857 and ositaokorofc@yahoo.com.