Your Excellency sir, I ask this question, why should a physical structure suffer the sins of a human being?
On Tuesday, October 27, 2020, Adamawa born and renowned legal practitioner, Samson Bukar Mshelmbula has cautioned governor Ahmadu Umaru Fintiri against taking action that negates Nigeria’s constitution while trying to punish looters and vandals in the state, saying any such decision amounts to executive rascality.
Fintiri during a broadcast recently, ordered looters of government and public properties to bring them back saying that after 12 hours from the time of the broadcast, a house-to-house search will commence.
The governor said any property in which a stolen item was discovered will lose its C of O or get demolished.
Responding, Mshelbula who is a lawyer, cautioned the governor against taking such extreme measures saying that they are not in tandem with the constitution.
“Your Excellency sir, let me use this medium to wish you a happy 53rd birthday anniversary. I pray that God grants you the wisdom of King Solomon as you undertake the challenges of office in your remaining 3 years in office.
“Your Excellency sir, I stumbled on your press statement to the good people of Adamawa state on 27th October 2020 which clashed with your birthday. I don’t know why you choose your birthday to make such an infamous statement and make subtle threats to people you swore to an oath to protect. Sir, the Constitution of the Federal Republic of Nigeria 1999 as amended states that the general welfare and security of the citizen shall be the priority of the government.
“Your Excellency sir, I agree with you that looting of the resources of the state and that of individuals is a crime and should not be handled with kid gloves. I however submit that such should be done within the purview of the law. I want to state that your recent press interview after the breaking of the palliatives store did not help the situation when you denied receiving any form of palliative or help from the Federal Government while your aides have videos, still pictures and news items on their various social media handles dating to as far back as April 2020, showing that indeed the state government was in receipt of various food items from the Federal Government during the lockdown.
“The state government must not be seen to be fighting with itself in dishing out conflicting news items. This is not the first time and certainly not the last looking at your body language.
“Your Excellency sir, I disagree with you on some points you raised and I hereby address it in the preceding paragraphs. Kindly disabuse your mind towards whatever emotions and feelings and go through it with a mind to pick something out of it.
“Your Excellency sir, in your speech, you stated that you will demolish any building housing any of the stolen items. The Constitution of the Federal Republic of Nigeria 1999 as amended provides at its Section 36 (5) the presumption of innocence in favour of an accused person charged with a criminal offence. This presumption of law acts in favour of an accused person even if he is caught in the act of committing an offence. This presumption can only be eroded or taken away by the court of law through its judgment. The presumption is a sacred principle of law and the foundation of criminal trial.
“Your Excellency sir, no man can be called guilty of an offence before a judge of competent jurisdiction has sentenced him and no society can deprive the accused of public protection unless it is decided by the court of law. This is the holding of the Supreme Court in the case of Nwosu v. The State (1985) 4 NWLR (Part 35) at 348.
“Sir to do otherwise will be an attack on the Nigerian Criminal Justice System. I implore you to kindly exercise restraint in assuming that anyone found with any of the stolen, looted or vandalized properties is an accused person and therefore subject to the punishments you outlined in your public broadcast of 27th October 2020.
“Your Excellency sir, if you go ahead to evade the homes of people in the quest to search people’s homes for stolen items, you may be infringing on their rights to privacy as guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria. The state government should not evade their homes under the pretence of searching for stolen items because it will amount to unlawful entry or harassment of an individual’s home. This will take the semblance of unlawful invasive procedures.
“Your Excellency sir, recall that on 29th May 2019, you took an oath of office and swore to uphold the Constitution of the Federal Republic of Nigeria; to do otherwise is tantamount to committing an impeachable offence and I believe that you will not do such a thing.
“Sir, you equally state that you will revoke the Certificate of Occupancy of any property found habouring any of the stolen items. Did you sir asked yourself whether such a property is rented by the person who stole, loot or vandalized the palliatives? The Constitution of the Federal Republic of Nigeria at Sections 43 and 44 provides for the right to every Nigerian to acquire and own immovable property in Nigeria and this right is regulated by the Land Use Act 2004 which then gives the governor of a state the right to hold the land in trust for all Nigerians. This right is subject to several regulations and ways it is exercised.
“Sir, the law provides for instances at which a governor can revoke or withdraw a Certificate of Occupancy. The law does not provide that a property covered by a Certificate of Occupancy should be demolished if a stolen item is found within or in the property or in the possession of someone resident within the property. In fact the law provides for instances for such a withdrawal and I did not see one of the reasons you stated in your speech as a reason for such withdrawal.
“If your executive order caused a property to be demolished, you will be guilty of executive lawlessness and incur cost against the state government in favour of the owner of such a property and of course you know that it is tax payers’ money that will be used to defray such cost. The law provides for procedures in revocation of a Certificate of Occupancy and it starts by personal service of a revocation notice on the owner of the property and payment of compensation in some instances. See the Supreme Court case of CSS Bookshop v. The Registered Trustees of Muslim Community of Rivers.
“Your Excellency, Sections 43 and 92 of the Nigeria Urban and Regional Planning Act 1992 provides that a property can only be demolished where it is in a dangerous state or in a state injurious to man, animals or plants.
“Your Excellency sir, let me advice you seriously on the issue of Executive Orders. I want to speak to you as a lawyer that an Executive Order is illegal. Kindly follow me gently and you will understand why. This advice, I will give you free of charge.
“Sir, the Constitution of the Federal Republic of Nigeria at Sections 4, 5 and 6 provides for separation of powers. The aim of making such a provision in the constitution by the drafters is so that it serves as checks and balances on each of the three arms of government namely the executive, legislative and judiciary. This is elementary to every secondary school student who attends class diligently. No governor can exercise the functions of the legislative and executive while hiding under a so-called Executive Order. It is arbitrary and an act of executive lawlessness.
“Your Excellency, under the wisdom of the doctrine of separation of powers, only the legislative arm can make laws. By the above argument, Executive Orders are illegalities perpetuated by the executive arms of government to circumvent the legislative and judicial arms of government. I refer you to the Supreme Court case of Unongo v. Aper Aku (1983) 2 SCNLR 332 at 361.
“Your Excellency, no person can be punished except in accordance with a written law and such a person must be afforded the opportunity to defend himself. Sir, in this instance, you are the accuser, the investigator, the prosecutor, the judge and also the one to execute the punishment. This is not fair. There is no law in Nigeria that allows for an Executive Order. It is a dictatorial and autocratic act of government and I urge you not to tow that inglorious line. Executive Orders are just general policy a statement made by a governor or head of the executive arm of government and does not in any way have the force and effect of law.
“Your Excellency sir, I ask this question, why should a physical structure suffer the sins of a human being?
“Finally sir, thank you for the time you took to read me. I shall continue to speak to you in this manner on various burning issues as time goes by. I wish you success in the remaining 3 years of your tenure. I remain Yours faithfully,” Mshelbula said.
Originally Published viaThe Gazette Nigeria