By Onikepo Braithwaite

Introduction
Nigeria can be such a funny country, sometimes funny ‘ha ha’, and also funny in terms of being bizarre. When there are pressing matters that require attention, we waste precious time on making mountains out of molehills instead. Nigeria was designated a Country of Particular Concern (CPC) a couple of weeks ago by US President, Donald Trump, alongside a threat of physical invasion of the country, and instead of concentrating on mapping out a viable strategy to face the insecurity that has plagued Nigeria for at least a decade and a half or more, the Ministry of Defence and Armed Forces are busy debating on who was rude or who should apologise in an altercation between the FCT Minister, Nyesom Wike, and Navy Officer, Lt Ahmed Yerima.

Meanwhile, those spearheading the call for an apology to Lt Yerima, such as the former Chief of Army Staff, Lt General Buratai (Rtd), are themselves major contributors to the escalation of insecurity in Nigeria due to their failure to perform their duty to fight insecurity effectively during their time in office. They are yet to apologise to Nigerians for putting them much more in harms way than anything else, when they were at the helm of looking after the security of Nigerians, and for how their acts and omissions have landed Nigeria where it is today, a CPC with allegedly over 300 IDP Camps around the country, with Nigerians living in some IDP camps for well over 10 years, all in squalor, misery and inhuman conditions (see Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), unable to return home because of insecurity.

Totally ignoring the failure and aforementioned breach of the Constitution by the Army under Lt General Buratai, costing tens of thousands of lives, as if the lives of Nigerians who have been lost or displaced are almost inconsequential, while magnifying Minister Wike’s abuse of Lt Yerima into a cardinal sin, seems to be disproportional. It shows that, two and a half decades after military dictatorship, the military still exalts itself over and above everything else, forgetting that, in a civilian democracy, the Constitution is the Supreme law; and in Nigeria, it is binding on all persons and authorities, including the armed forces – see Section 1(1) of the Constitution. All persons and authorities, including the armed forces, are also bound by the law.

The argument that Minister Wike’s abuse of a Military Officer is tantamount to insulting the President who is the Commander-in-Chief of the Armed Forces, is pari passu or inferior to not allowing the FCT Minister, a direct representative of the President, whose office is established by Sections 147 & 302 of the Constitution, nominated by the President and confirmed by NASS, duties assigned by the President by virtue of Section 148 of the Constitution, on the ground of ‘orders from above’, can similarly be classified as an insult, not only to the President, but to the Constitution which is the grundnorm.

The ‘Wikerima’ Incident
I will restrict this discourse solely to what transpired in the video that Nigerians watched last week, which captured an altercation between Minister Wike and Lt Yerima (the Wikerima incident), particularly because I haven’t had the benefit of seeing any documents, nor do I have all the accurate facts of the case. I prefer to comment, only on what is known.

To be clear, I do not support the pouring of invectives on anybody, whether military or civilian, as Minister Wike did on Lt Yerima in the video. As a Minister and Life Bencher, shutting Lt Yerima up and calling him a fool, is not the kind of language that is expected from a person who occupies the position of a Minister of the Federal Republic of Nigeria, and such an exalted position in the legal profession. It is unbecoming. Minister Wike should have exercised restraint, no matter the provocation. Nevertheless, I also do not support the intimidation Nigerians experience from uniformed personnel, as Minister Wike accused the military men of doing to the FCT Officials who visited the land that is the subject-matter of the dispute, claiming that they were beaten up by them and chased away.

Lt Yerima, has been turned into some sort of hero overnight, not because he performed his duty as a member of the armed forces by maybe killing insurgents, but because he stood his ground in his altercation with Minister Wike. Surely, this isn’t the standard of measure used to qualify military personnel as heroes anywhere in the world, so why should it be so in Nigeria? A Military hero is one that has partaken in armed conflict like war, and displayed traits such as patriotism, courage, bravery, possibly saving the lives of fellow soldiers in the face of attack, shown exceptional tactical skills and strategy, a strong sense of duty, integrity and so on.

The Legal Aspect
That said, we must examine the Wikerima incident, from the legal standpoint. The comments by some that Minister Wike was lucky that he wasn’t physically harmed, maybe shot by the soldiers, shows how Nigerians have become casual about the fact that it may almost be normal for those in uniform to carry out unlawful killings at will.

Even though it is highly unlikely that Lt Yerima, as a member of the armed forces would have disobeyed his superior’s military orders to grant access to FCT Officials or Minister Wike, it doesn’t mean that he was right. Consequently, it is apposite to examine the command which Lt Yerima claimed he was obeying that day, to determine if it was lawful, and Lt Yerima’s obedience therefore, right, as even the Minister of Defence stated that they would protect any Officer following ‘lawful’ instructions.

Not all instructions are lawful. In Nwaoga v State (1972) LPELR-2114 (SC), during the Nigerian Civil War, the Appellant had been ordered by his Superior to point out the deceased to two other Officers, so that the Officers could eliminate the deceased. The Appellant’s superior Officer had cited orders from above, from State House, to support his instruction to the Appellant. In his defence, the Appellant had argued that he had to obey the orders of superior Officers. The Supreme Court per Adetokunbo Adegboyega Ademola, JSC, held thus: “The learned trial Judge, in the present case, considered in his judgement the case of R. v Smith (1900) 17 S.C. R. 561, and said: “It was held that a soldier is responsible by military and civil law, and it is monstrous to suppose that a soldier could be protected when the order is grossly and manifestly illegal. Of course, there is the other proposition that a soldier is only bound to obey lawful orders, and is responsible if he obeys an order not strictly lawful”. Similarly, in the more recent case of Onunze v State (2022) LPELR-59884 (SC) per Helen Morinkeji Ogunwumiju, JSC, the Supreme Court held that “The excuse of obedience to unlawful superior orders must not be accepted, where the orders are manifestly illegal”.

It is clear that, no Officer is obliged to follow an unlawful order. The question is whether an order to chase away FCT Development Control Officials who may have visited the land to inspect and ascertain that those on the land possibly constructing, have building plan approval and are adhering to it (which is part of their official mandate), allegedly beat them up, deny them access to the land, and also deny the FCT Minister access to the land to do same, is lawful. Obviously, the answer cannot be yes.

Statutes enacted by the National Assembly, are next to the Constitution in the pecking order – see Section 4 of the Constitution. The Land Use Act 1978 (LUA) is the law that governs landholding in Nigeria. Section 297(2) of the Constitution vests all land in Abuja in the Government of the Federal Republic of Nigeria, while Section 299 thereof provides that the FCT be treated as a State; Section 301 of the Constitution provides that references to the Governor of a State shall be construed as references to the President in the case of the FCT, while Section 302 provides that by virtue of Section 147 of the Constitution, the President may appoint an FCT Minister to exercise his powers and functions in the FCT. A community reading of these provisions evinces the fact that, by the aforementioned powers vested in the President by the Constitution, the FCT Minister functions in the place of the President in respect of the FCT, like the Governor of a State.

Section 1 of the LUA vests the land in a State in the Governor in trust and for the common use and benefit of all Nigerians, while Section 11 thereof gives the Governor or any officer duly authorised by the Governor the right to enter upon and inspect any land comprised in a statutory right of occupancy or any improvements thereon at any reasonable time of the day, and the occupier shall permit and give free access to the Governor or the official sent by him. This power is also vested in the President of Nigeria for the FCT, delegated to the FCT Minister. Therefore, whether it is a serving or retired Chief of Navy, or Lt Yerima, they appear to have breached Section 11 of LUA which makes it mandatory for the occupier to grant Minister Wike or the Development Control FCT Officials access to the land. Failure to have done so, portrays a presumption that they believe that they are above the law, and the law doesn’t apply to them. In Ugwu & Anor v Ararume & Anor (2007) LPELR-24345 (SC) per Niki Tobi, JSC, the Supreme Court held that when the word ‘shall’ appears in a statute, it is a form of a command or mandate, that something must be done or must not be done. This means that, by virtue of Section 11 of the LUA, Lt Yerima or whoever instructed him, cannot deny FCT Officials or the Minister himself, access to the land at a reasonable time of the day. The video showed that the FCT Minister arrived at the land, not in the dead of night, but in broad day light, in the morning or afternoon, which is a reasonable time of the day. See Nwaoga v The State (Supra).

Again, the last time I checked, in Section 217(2)(a)-(d) of the Constitution, the functions of the Armed Forces of the Federation include defending Nigeria from external aggression and suppressing insurrection, not guarding or protecting the personal disputed land of serving or retired Officers of the Armed Forces. Also see Section 1(3) & (4) of the Armed Forces Act 2004 (AFA). And, by virtue of Section 217(2)(d) of the Constitution, NASS remains the body that can prescribe additional functions for the Armed Forces. Looking at the foregoing, could it be said that Lt Yerima was on a lawful duty which he was under compulsion to obey? A Lieutenant in the Navy, is equivalent to a Captain in the Nigerian Army. Certainly, it cannot be lawful duty for a Commissioned Officer in the Military, to be on sentry duty guarding the personal disputed land and blocking the access Government Officials to it.

Court
Those involved in the land dispute with the FCT, following the first visit by the FCT Officials, or at the hint of any impending problem regarding the land, could have immediately gone to the FCT High Court with a motion ex-parte and an affidavit of urgency attached thereto to emphasise the urgency of the matter, and pray for an interim injunction restraining the FCT Officials and the FCT Minister from entering the land to harass them, or attempting to carry out any demolition on the land etc, pending the hearing and determination of a motion on notice in that regard, praying for the status quo on the land to be maintained until the final outcome of the case, whose subject-matter would then be the dispute on the title to the land, if indeed, there is one, and the matters related thereto.

Sections 28 & 38 of the LUA give the Governor (FCT Minister) the power to revoke a right of occupancy, and legal grounds for this could be overriding public interest or breach of the conditions of grant. There is however, a procedure to be followed in making the revocation, and evicting squatters from such land.

Conclusion
Proclaiming only Minister Wike as wrong in the Wikerima incident because he verbally abused Lt Yerima in the course of carrying out his duty, while exalting Lt Yerima’s actions which appear to be constitutional and statutory breaches, as acts of gallantry and heroism, shows that the matter hasn’t been examined holistically, vis-à-vis the law.

Our opinion, cannot be based upon whether we like Minister Wike or not. Nigeria is no longer under a military dictatorship, nor is it a Hobbesian State, where there is no rule of law, and people can just do whatever they feel like. What was the reason for the #EndSARS Protest in 2020, in which people lost their lives, if those in uniform are free to operate how they like, and not in accordance with the laws of the land? Whether Minister Wike, Lt Yerima, the former Naval Chief who may be claiming title to the land, or the armed forces, they are all bound by the law. They are not above it.

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