Issues in Akeredolu’s ‘Ultimatum’

THE ADVOCATE BY Onikepo Braithwaite     Onikepo.Braithwaite@thisdaylive.com

Governor Akeredolu’s ‘Ultimatum’

When I heard that Governor Rotimi Akeredolu, learned Senior Advocate of Nigeria, had issued an ultimatum for all Fulani Herders/Herders to leave Ondo State, I thought it sounded bizarre, because like any other Lawyer, let alone a Senior Advocate, he is well aware of of Sections 41(1) & 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) which guarantee our right to freedom of movement and acquisition of immovable property anywhere within Nigeria. I knew that he couldn’t have made such an obvious and basic error. Not like some Northern Youths and their “Kaduna Declaration” of 2017, in which they issued an ultimatum for all Igbos to vacate Northern Nigeria by a particular date, or face reprisals; or those who have sought to expel Bishop Kukah from Sokoto, because of his Christmas Day Message.

Be that as it may, the freedom of movement guaranteed by Section 41(1) of the Constitution, is limited by the provisions of Section 45 (1)(a) & (b) in the interest of defence, public safety, public order or public health; or for the purpose of protecting the rights and freedom of others, respectively. However, it seems that a law is required, if such freedom of movement is to be derogated from, whatever the interest it may be in.

Subsequent news reports revealed that the allegations levelled against Governor Akeredolu were somewhat false, as it seems that the Governor had only issued an ultimatum for occupants of the forest reserves to vacate same within seven days; or to register with the State Government within seven days, failing which they should vacate the forest reserves (‘the Ultimatum’). They were never asked to leave the State.

My first submission is that, the issue of the Governor breaching anybody’s right to freedom of movement, does not particularly arise in this circumstance (as is being peddled by some), because from the look of the Ondo State Government’s statement, those who register with the Government may not be required to vacate the forest reserves, and in any event, vacating the forest reserves does not translate to expulsion from Ondo State. And, even if Governor Akeredolu, as the Chief Security Officer of his State, did decide to evict everybody from the forest reserves in the interest of public safety, public order and protecting the rights and freedoms of the people of Ondo State, since the forest reserves have been identified as the principal centre of criminal activities in his State, like murder and kidnapping, once the eviction is supported by a law enacted by the Ondo State House of Assembly to that effect, or that the forests reserves can only be occupied by those with a licence from the State Government, Governor Akeredolu will be within his rights.

The question which first comes to mind, is whether the occupants of the forest reserves have the legal right to be there grazing their livestock in the first place, and if evicting them from there can then amount to an infringement of their right to freedom of movement, if they have no right to be there ab initio. In this regard, issues of trespass which I will address below, must also be considered.

Much More than Ethnic/Tribal Sentiments

I support the Governor’s initiative, because this is an extremely serious matter bordering on the security and welfare of the people of Ondo State, the people of the South West, and indeed, all Nigerians, the protection of whom is the primary purpose of the Ondo State Government, and the Federal Government of Nigeria (Section 14(2)(b) of the Constitution). And, it must be treated as such, instead of being trivialised and reduced to ethnic, religious or tribal sentiments, as we have a habit of reducing everything in Nigeria to. Should the Governor fold his arms until the situation in his State deteriorates to that of Borno State and the North East? I think not. And anybody who expects Governor Akeredolu to sit around pussyfooting while things are rapidly spiralling out of control, in order to be politically correct, I apologise on the Governor’s behalf for whoever’s sensibilities have been hurt. But, the truth is that, he will be failing in his duty, if drastic steps are not taken to stem this tide of violence and criminality forthwith.

I do agree that it is wrong and somehow derogatory to stereotype any tribe as being criminals, since there are criminals from all tribes. Are all Yorubas and ‘Bendelites’ armed robbers because two of the most notorious armed robbers in Nigeria, Dr Ishola Oyenusi (Dr of Armed Robbery) and Lawrence Anini are from their tribes? Are all Igbos kidnappers, fraudsters or drug barons because some of the most notorious ones are from their tribe? NO. Similarly, all Herders/Fulani Herdsmen cannot be labelled as kidnappers, murders or rapists because of the bad eggs within their tribe. My point? Just as there may be criminals/criminals masking as Herdsmen operating within the confines of the Ondo State forest reserves, so also will there be many non-criminals simply trying to eke out an honest living. I would imagine that it may be in recognition of this fact, that Governor Akeredolu may also have directed that the occupants of the forest reserves register or be licensed, in order to separate the wheat from the chaff, the good from the bad.

Has the Governor done wrong in trying to keep track of the occupants of his forest reserves, if that will assist in curbing criminality in his State and protecting his people? Is it too much to ask the occupants of the forest reserves to register their presence with the State Government? Will the registration exercise also not be beneficial and a good protective measure for the Herdsmen who are in the forest reserves truly grazing their livestock, and are not involved in any type of criminality?

The Law and Matters Arising

Section 1 of the Land Use Act 1978 (LUA) vests all land within the territory of each State in the Governor of that State, to hold in trust and for the benefit of all Nigerians. Though there have been many allegations that some of the Herdsmen who are responsible for the violence and mayhem that we have seen in several parts of the country are not Nigerians, for the purpose of this discourse, I’m referring to Nigerians. Ergo, my second submission is that the Governor of Ondo State holds the land within his State for the benefit of all Nigerians, including Nigerian Herdsmen.

The forest reserves are probably under the control and management of the Local Government that covers the area in which the forest reserves are located (Section 2(1)(b) of the LUA), as they cannot be located in urban areas and therefore, qualify as non-urban “other lands”. Section 6(1)(b) of the LUA empowers Local Governments to grant customary rights of occupancy to any person or organisation, inter alia, “for the use of land for grazing purposes”. Section 2(2) of the LUA however, makes the consent of the Governor mandatory, if the Local Government grants a customary right of occupancy over land measuring 5000 hectares or more, for grazing purposes.

A pertinent question to ask at this juncture, is whether any of the Local Governments in Ondo State granted the Herdsmen customary rights of occupancy in respect of the forest reserves they occupy, or whether they are simply illegal occupants/trespassers or there at the Governor’s pleasure. What is the arrangement, if any, between the Herders and the Ondo State Government? My third submission is that, if the Herders do not possess any customary right of occupancy, nor are they there with the consent of the Governor, they could be described as trespassers.

Trespass

Trespass is the unlawful or unauthorised entry into the land of another, or remaining on the land or placing something on the land, in this case, grazing cattle – ‘quare clausum fregit’ (‘breaking the close’ of someone’s land – be it the land of an owner or one who is in lawful possession). See the case of Mr Onagoruwa v Mrs Akinremi & 2 Ors 2001 13 N.W.L.R. Part 729 Page 38 where the Supreme Court held that it is a continuing tort of trespass for a person to remain in another’s land, without the person’s authority or consent. In Yekini Adedokun Oyadare v Chief Olajire Keji 2005 1 S.C. Part 1 Page 1 the principle that a true owner of a land or one in rightful possession can disturb the possession of a trespasser, was also restated.

It is also trite law that, even if a person entered another’s property lawfully or with consent, and subsequently abuses that privilege, he/she becomes a trespasser ab initio, so that his/her abuse essentially relates back and makes the initial entry trespass. See the case of Ajibade v Pedro 1992 5 N.W.L.R. Part 241 Page 257. This means that even if some of those who entered the forest reserves did so with the consent of Ondo State Government, and later turned to any kind of criminal activity, the criminal activity relates back and makes their initial entry into the forest reserves, trespass. Additionally, trespass is about possession, not necessarily about title; therefore, “exclusive possession by a trespasser is good against the whole world, except the person who can show better title” (in this case, Ondo State Government has title/better title) – Ufomba v Ahuchaogu 2003 8 N.W.L.R. Part 821 Page 130 at 148 per Ogundare JSC. In other words, the Herdsmen’s possession of the forest reserves, cannot be good against the title of the Ondo State Government.

Legal Options

My point? whichever way you choose to look at the situation, Governor Akeredolu is covered, and is acting within the ambit of the law. Nigeria is purportedly a Federation, and unless the land is described as Federal land, it belongs to the State in which it is located. Therefore, the Federal Government does not really have a say in this matter; Governor Akeredolu, on the other hand, does! So, if he evicts the occupants from the forest reserves in the interest of public safety, public order and so on, once it is done in accordance with provisions of Section 45 of the Constitution, it will be difficult to fault him. Similarly, if the occupants of the forest reserves are not there lawfully, that is, if they are trespassers, the Governor can also institute proceedings to evict them. The now famous judgement of Justice Adewale Thompson in Suit No. AB/26/66 (which to the best of our knowledge has not been overturned by a higher court and therefore, remains a precedent on this issue), which banned open grazing in 1969, ordering cattle herders to fence and ranch their animals in the interest of peace and tranquillity, also works in Governor Akeredolu’s favour. It seems that in any event, the Governor has taken a cue from Benue State, and also banned night grazing.

Conclusion

I align myself with part of the statement of the Director General of Progressive Governors Forum, Dr Salihu Lukman, who called for caution in the misinterpretation of the Ultimatum. I agree with him that the utterances of the Presidential Spokesman has activated divisive politics in the country, which is far from what Nigeria needs presently. What we are in dire need of, is nationwide security, without which there cannot be much progress for us as a country, let alone one that attracts FDI (foreign direct investment), as Insecurity and FDI are like oil and water – they do not mix; they are antithetical.

My advice? (whether you want it or not!) The occupants should submit themselves to the Ondo State Government’s registration exercise. It’s a small price to pay, in order to enjoy the benefits of the forest reserves, if that is what is required of them. Support Governor Akeredolu, Governor Zulum and all others, who seek to make our country a safer place for us all to live peacefully in.

The issues between the Ondo State Government and the Herdsmen can be resolved amicably with dialogue and understanding, not by representatives of the Presidency seeking to whip up futile ethnic or tribal sentiments, grandstanding and spreading bile. Nothing riles people more than when they are given the impression that a group of people are more special than others, in a country where the Constitution provides that equality and fairness must be promoted (Section 42(1)(b) of the Constitution). No one, whether Fulani, Igbo, Hausa, Bini, Yoruba or Efik Herdsmen, is above the law (or below it). If members of the Miyetti Allah Cattle Breeders Association have nothing to do with the criminality and banditry that has pervaded Ondo State, surely, they should be happy to cooperate with Governor Akeredolu to restore peace and tranquillity to the area.

My dear colleagues, please, share your thoughts on this matter which affects us all.