UNIBEN demolition: Executive powers and doctrine of fait accompli
Four days after the new year celebration, specifically Monday January 5, 2015, the government of Edo State cut short the convivialities of some senior members of the staff of the University of Benin (UNIBEN). It pulled down properties housing the university lecturers, including that of the immediate past vice chancellor, Prof. Osayuki Oshodin. The dispute over the ownership of the property had only just been settled in favour of the state at the lower court, which means that the appellate channels were yet to be exhausted. In this report, JOSEPH ONYEKWERE notes that the demolition was hasty and foist a fait accompli on the superior courts.
THE legal battle for the ownership of the properties housing staff members of the University of Benin (UNIBEN) was fierce. Edo state government was determined to take possession of the properties it said belong to it and the University was not ready to let go.
While the state government suspected that some staff of the University might outsmart it by selling theirs and promptly announced caveat emptor, the University in turn approached an Edo High Court, Benin City seeking five reliefs in respect of the disputed property.
Unfortunately for the University, the trial judge, Justice E.O. Ahamioge, on December 16, 2014 gave a judgement awarding the ownership of the properties in contention to Edo State Government.
Expectedly, the University authorities were greatly dissatisfied with the reasoning adopted and the conclusions reached by the trial Court. As a result, the they promptly appealed the decision of the Court on December 19, 2014 by filing a notice of appeal and an application for stay of execution of the judgment. That was three days after the decision.
According to the University, the notice of appeal and the motion for stay of execution were served on the State Government by the Bailiffs of the court and duly acknowledged by the counsel to the State Government on December 21, 2014. The assertion that the court papers were served on the government is more plausible, since it is at their detriment to pocket such important documents, aware of the consequencies of doing so.
In spite of this state of affair, Governor Adams Oshiomole, allegedly led a demolition squad and personally supervised the demolition of some of the properties in controversy without giving notice to the occupants of the building to evacuate their belongings or wait for the outcome of the appeal process in defiance of all known democratic and legal procedures.
In a chat with the media, Governor Oshiomole stated that the properties were donated to the University when it was established by the then Governor of the Mid-Western Region, Brigadier Samuel Ogbemudia.
He explained that three years ago, he expressed his interest to revoke the donation, but instead of engaging him in a dialogue, the University authorities took him to Court to contest his power to do so.
The Governor stated further that from December 16 when the judgement was given, to the day he went to demolish the properties, nobody from the University came to him to ask for extension of time within which to vacate the property or inform him that the University had appealed the Judgement. He added that both the appeal notice and motion for stay of execution processes were not served on him.
Oshiomhole further stated that the senior staff of the University were not entitled to stay in those properties because since after the monitisation policies of the Federal Government, their salaries, accommodation and other benefits have been monitised. According to him, that accounts for the fat salaries the professors now receive, adding that the professors gave out those accommodation to their wards and cronies.
In the same vein, Attorney-General and Commissioner for Justice, Henry Idahagbon defended the action of his principal. He said the government was not at fault. Idahagbon also claimed he was not aware of any stay of execution.
To underscore the veracity of his claims, he stated that if the institution’s authority could provide the evidence of a stay of execution served on the government, he would resign his appointment.
He disclosed that a court in 1981 had also ruled in favour of the government, insisting that government only repossessed their property.
But Chief Alfred Eghobiamen (SAN) disagrees with the Attorney General. He called on him to resign from office for telling lies to the public. Chief Eghobiamen stated that the Attorney-General lied to the public when he said that the State Government was not served the Notice of Appeal and the Motion for stay of execution on December 21,2014. He said that a study he conducted showed that the state government was duly served those court processes by court officials through their counsel.
The learned silk condemned the action of the governor who allegedly supervised the demolition of the properties, stating that the governor acted beyond his powers. “It is the duty of Court officials accompanied by the Police to levy execution and not the duty of the State Governor”, he declared.
Head of the Legal Unit of the University, Prof. Bright Bazuaye said that the University did all it could do within the ambit of the law to prevent the illegal demolition of its properties by the governor. “Even though the governor had the judgement of the Edo State High Court in his favour, law and equity demands that he should have waited for the outcome of the appeal process before taking any action to damage the res”, he stated.
The dean, faculty of Law UNIBEN, Prof. Richard Iduber said: “I feel very embarrassed at this whole development, because it is one of its kind. This is really taking things for granted, the architect is believed to be Comrade Adams Oshiomole, governor of Edo State.
“It is most under handled for a thing like that to be done at this point in time. If you want to gather honey, you don’t kick over a beehive. I sometimes wonder whether my otherwise amiable comrade overnor is actually working for his party. I believe, as it has been in my mind for some time now, that he is probably working for the interest of another political party.
“He might be doing this to service the interest of another political party for now, for him to come back and join them later depending on what the terrain looks like because somebody who believes that he is working for his own party is supposed to be people oriented in his views and approach and his attitude to governance in the last couple of months, leaves much to be desired”, he stressed.
He recalled that the governor got his first mandate back through the court of appeal and so, should not feign ignorance of the right of appeal. “We understand the hierarchy of courts in this country from the court of first instance, to the Court of Appeal and then to the Supreme Court. So a man who wants justice to be done should allow people to have the opportunity of exhausting it all before demolishing the buildings. People can say yes, he wants to enjoy the fruits of his successful litigation, yes at whose expense?” He queried.
He lamented that the action of not allowing other party right of appeal before demolition is insidious.
In a petition to the Inspector-General of Police (IGP) over the matter which was made available to the press, counsel to the University, Mr. Hannibal Egbe Uwaifo questioned the source of Oshiomole’s right to the properties.
He wrote: “Were those properties shared to Edo State when the assets of old Bendel State were shared between Edo, Delta and other stakeholders? Is Edo State the only State that was carved out of the old Bendel State? Why should Oshiomole personally supervise the demolition of those properties? If he is the owner of those properties as he claimed, is demolishing them the reasonable way of taking possession?”
He called on Nigerian Bar Association (NBA) to rise up in defense of justice by condemning ‘illegal’ act.
Part of the petition reads: “Our client informed us that on December 23, 2014, unidentified agents and proxies of the Edo State Government mercilessly beat up and forcefully threw out the staff of the University, who occupied those properties. They afterwards locked them out of the properties with a stern warning that they will be killed if they ever were to be seen near the properties.
“It is our further instruction, that the matter was reported to the Airport Road Police Station, from which our clients received assurances of a thorough investigation and the protection of the properties from further invasion by agents and proxies of the State Government. “Nevertheless, and to our client’s utmost chagrin, the perpetrators came visiting again on December 31, 2014, and this time, to pull down the buildings, destroy the properties of the occupants and bury them in the rubbles.
“On January 5, 2015 thugs in company of the Governor of Edo State and sadly armed Nigeria policemen attached to the Government house, Benin City destroyed the house of the immediate past Vice-Chancellor and some other houses of the university staff.
“Our clients have since reached out to the Edo Commissioner of Police to seek a clear and present intervention in the matter to no avail. Unfortunately, the mannerism and status of those involved in these diabolic acts appear to overwhelm the ability of the Edo State Police Command to intervene, not only to pursue justice for our clients, but also to protect the remaining sixteen properties and their occupants from suffering the same fate from the State Government by itself, its agents or proxies.”
Uwaifo said even though the High Court ruled in favour of the State Government, all constitutionally guaranteed means of appeals were yet to be exhausted and that his clients have exercised all diligence towards exercising its right of appeal.
“It is a case in which the State Government and its proxies know that they stand very slim chance of success on appeal. Hence, they resorted to intimidation, harassment, threat to life and all other form of illegal devices with the hope that our clients will be cowed into abandoning its appeal. It really beats our imagination why a party that has obtained a favourable court judgment would choose to acquire the fruits of the judgment in a matter that threatens the sanctity of the rule of law of which the courts are the first agents”, he stated, urging the IG to launch a thorough investigation into the matter as well as strong police protection.
Lending its voice to the issue at stake, the state chapter of the Peoples Democratic Party (PDP) described the demolition of the UNIBEN senior staff quarters by the government as a fight against the Federal Government. The state chairman of the party, Dan Orbih, described the action as ‘barbaric’, saying that it was wrong for a government to infringe on the constitutional rights of the citizens, especially when the issues were still pending in court.
Whatever the reasons for the demolition, it was a hasty action. Even if we assume that the state government did not receive the notice of appeal or the motion for stay of execution, the state attorney general, surely knows that the constitution provides for right of appeal.
If the governor is not aware, he as a matter of fact, must also be aware that the defeated party in civil suits has three months within which to appeal under the law.
Indeed, the right to appeal in some instances is recognised by the Constitution of the Federal Republic of Nigeria as of right. See section 241 of the constitution of Nigeria, chapter C23, laws of the Federal Republic of Nigeria.
Also, the law provides that an appeal against the final judgement of the High Court must be lodged within three months in respect of civil cases and 90 (ninety) days for criminal cases. An appeal against an interlocutory decision of a High Court must be lodged within 14 days.
The Court of Appeal Act, 1990 section 25 says: (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against. Those are clear provisions of the law, which no one should claim ignorance of.
While it is possible for the State to still win in appellate courts, an indication that it truly belong to them, the hasty destruction of the res is quite condemnable. The governor, surely was ill-advised!