In this article, a Senior Advocate of Nigeria (SAN), Femi Falana, lists the processes that must be followed by the government before embarking on demolition of houses.
Sometime in 1989, about 300,000 people were rendered homeless in Maroko, a shanty town on Victoria Island in Lagos State when their houses were demolished by the defunct military junta. All efforts by the displaced people of Maroko to halt the demolition failed on the ground that a breach of the fundamental right to property could not be enforced under the Fundamental Rights Enforcement Procedure Rules, 1979. Upon the appropriation of Maroko, it was sand-filled with public funds and distributed by the government to some top civil servants, military officers and business elite. Even though the Court of Appeal later held that the refusal of the High Court to grant the relief sought by the displaced community was wrong, the ruling military junta arrogantly named one of the streets after the judge who refused the injunction!
However, following the destruction of their homes by the Lagos State government, the Maroko people took over the uncompleted Abesan Estate. To prevent the government from ejecting them forcefully from the estate, we approached the Lagos High Court for legal protection. In stiff opposition to the suit the government contended that since the occupants of the estate were squatters, they could be ejected forcefully. In rejecting the spurious contention, the presiding judge, Alabi J. (as he then was) ruled that the occupiers of the estate were entitled to be served a seven-day quit notice and be sued if they refused to quit the premises.
Notwithstanding the clear provisions of the law enunciated by the Lagos High Court in Samuel Ayeyemi’s case, the Lagos State government has continued to embark on mass demolition of houses occupied by the poor in the state. It is our submission that all the demolition exercises carried out so far are illegal as they violate Section 36(4) of the Constitution which stipulates that in the determination of their rights and obligations, every citizen shall be entitled to make a representation to the authority. It is pertinent to note that the right of owners or occupiers of houses to make representation to the government before any demolition exercise is carried out is enshrined in the Lagos State Urban and Regional Planning and Development Law Cap U2 Laws of Lagos state 2015 (herein referred to as the URPD Law).
Thus, by virtue of Section 49 of the URPD Law, there shall be a renewal agency which shall be saddled with the responsibility to issue enforcement notices, including the following: Contravention Notice; Stop Work Order; Quit Notice; Seal-up Notice; Regularisation Notice; and Demolition Notice.
Before enforcing the order contained in any of the aforesaid notices, a committee of members of the renewal agency shall be set up to hear, consider and report on any representation or objection which may be made orally or in writing by the owner or occupier of any building on which a notice has been pasted. It is further provided that before a demolition order is made in respect of any building or a part of it, estimates of the compensation payable to the owner or occupier shall be determined and made available.
If the agency dismisses the objection and confirms the demolition order, the aggrieved owner or occupier has the right to appeal against the decision to the Physical Planning and Building Control Agency Appeals Committee. Furthermore, an aggrieved person or any interested party may appeal against the decision of the Appeals Committee and such appeal shall lie as of right to the High Court of the State. The appeal to the high court must be made within twenty-eight (28) days after written notification of the final decision of the Appeals Committee.
It is clear from the foregoing that it is after the complaint of the aggrieved person has been dismissed by the High Court that any demolition can be carried out in Lagos State. However, a building cannot be demolished in any part of the state without a valid court order, unless it has been established that it is structurally defective or found to constitute environmental hazard. Therefore, the practice of demolishing houses after the expiration of a 48-hour notice is illegal in every material particular. In a judgment delivered by the Federal Capital Territory High court on February 2, 2017, in Chief Jacob Obor & Ors v Federal Capital Territory & Ors (unreported suit no CV/3998/12) Kutigi J. declared the planned demolition of all the houses in Mpape illegal on the ground that the notices purportedly served on the plaintiffs did not meet statutory requirement.
Indeed, the illegality of the demolition of houses in Lagos State is compounded by the refusal of the Ministry of Physical Planning to hear and determine the objections and complaints of owners of buildings which are marked for demolition. In other words, the action of the government constitutes a reckless violation of the provisions of sections 57-89 of the Law. It is also a breach of section of 36 (4) of the Constitution which guarantees the fundamental right of every citizen to make a representation before any matter affecting their civil rights and obligations is determined.
In SERAP v. Federal Republic of Nigeria (2002) 2 CHR 537 at 562 the African Commission on Human and People’ Rights condemned the demolition of a number of houses in Ogoniland. While upholding the human right of the owners of the demolished houses to shelter the Commission said:
“At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs.”
To check the menace of land grabbers and prevent a breakdown of law and order, the Lagos state government has enacted the …….Law, 2016, which has criminalised the seizure of land and houses without a valid court order. Thus, by forcefully taking over houses before demolishing them, the Lagos state government has violated its own law. The duty of the government to prevent the use of force was emphasised in the case of Attorney-General of Lagos v. Attorney-General of the Federation (2004) 18 NWLR (PT 904) 1 at 53 by the late Justice Niki Tobi when he said:
“The courts are available to accommodate all sorts of grievances that are justiciable in law and section 6 of the Constitution gives the courts power to adjudicate on masters between two or more competing parties. In our democracy all the governments of this country as well as organizations and individuals must kowtow to the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance.”
It has been confirmed that some of the demolitions were carried out while cases challenging the validity of demolition notices were being challenged in the Lagos High Court. Even under a military dictatorship the government was called to order in the case of The military governor of Lagos State v Chief Emeka Ojukwu (1986) 4 NWLR (PT 18) 621 when the Supreme Court said:
“In the area where the 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 proclaims to operate under the rule of law, there is no room for rule of self-help by force to operate… the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive.”
In the light of the foregoing, it is submitted that the demolition of houses carried out by the Lagos State Government without a court order is illegal and unconstitutional. If the victims seek legal redress, the government is liable to pay special, general and aggravated damages. Perhaps the attention of the government ought to be drawn to the damages of N166 billion awarded by the Federal High Court against the Federal Government in three separate judgments over the wilful destruction and demolition of houses during the military invasions of Odi, Zaki Biam and Gbaramatu.
