A High Court of the Federal Capital has ruled that authorities cannot evict residents and demolish their structures, even when they are occupying illegal layouts, without complying with due process as well as statutory requirements, ADE ADESOMOJU reports
Residents of Mpape area of the Federal Capital Territory in Abuja on July 6, 2012 woke up to find a newspaper publication of a timetable capturing the programme of demolition exercise about to take place in their area.
A resident, Chief Jacob Obor, who had lived in Mpape for decades, said he had there a plot of land measuring 100 feet x 100 feet transferred to him by a native of Gwari, Mr. Ali Daudu, by virtue of a land transfer agreement dated November 15, 1991.
He described Mpape, which he claimed, although without proof, was measuring 400 hectares and populated by about 2 million residents, as a community yielding “a lot of revenue for the Federal Capital Territory.”
For him, there was no justification for the planned demolition in Mpape, especially when he government authorities had conducted house numbering exercise in the area and landlords were made to pay fees for the exercise.
He said, among others, that residents also made demands notices for business premises to Bwari Area Council, one of the six local governments of the FCT.
According to him, payments for the business premises were also made to the Bwari Area Council.
He said if government authorities were “allowed to demolish Mpape, a lot of people will be rendered homeless.”
An Mpape resident for over 20 years, Mr. Nwachukwu Ude, said he a parcel of land in the area in 1999 by virtue of a power of attorney donated to him by one Alhaji Ibrahim.
Ude’s neighbour in the area, Mr. Young Ekeugo, also told the story of how he acquired a piece of land by virtue of a land agreement with one Umar Dada.
Ekeugo, who said he regularly paid his tax to the Bwari Area Council, explained that the Adjudication Committee on Rural Lands in Abuja made available to him a form which he completed in respect of his application for a customary right of occupancy.
According him, the Chief of Mpape Community had applied on his behalf to the Bwari Area Council for the issuance of a Customary Right of Occupancy.
Another resident, Mr. Olasogba John, said he became a holder of a piece of land measuring 25 feet by 40 feet at No. RB5, Arab Road in Mpape Village by virtue of a land agreement executed between him and Mr. Adebayo Olumide, the original allottee of the land.
He also claimed Mpape was being inhabited by about two million people.
He added that being a commercial area, the place had attracted investors from different places and that the Bwari Area Council, acting on the directives of the Federal Capital Territory authorities, had issued, at a regular interval, demand notices over creation of signboards, billboards, among others, which residents of the areas paid duly paid for as demanded.
His belief was that following the creation of the FCT, some areas were specifically ceded to the natives popularly called the Gwaris, who, before the creation of the FCT, resided in the said area.
He said in exercising the powers of the natives over the area that they controlled, they sold or passed title to some of the plots to individuals and corporate bodies who developed same.
Apprehensive of the “plan to demolish Mpape”, Obor, Ude, Ekeugo and John along with 10 others residents approached a High Court of the FCT High Court in July 2012, seeking to stop the planned action.
The other plaintiffs who are all Mpape residents include, Mr. Israel Awoyemi of No. B239, Behind Catholic Church, Ajegunle Road, Mpape Village; Mr. Macos Gabriel of 1, Olutanmola’s Lane, GRA, along Shishimpe Road, Mpape; Mr. Chiemeka Friday, Mrs. Gloria Ustine and Clement Abba of 16, Johnson Street, Mpape.
Others are Mr. Francis Eneje, Mr. Ikenna Motua, Col. Akpan Saviour, whose house is opposite Julius Berger Nigeria Plc’s Quarry Site along Jikolo Road, Mpape; and Mercy Yakubu, whose house is also close Julius Berger Nigeria Plc’s Quarry Site along Jikolo Road.
Sued as the defendants in the suit marked CV/3998/2012 are the Federal Capital Development Authority, the Minister of Federal Capital Territory, the Department of Development Control and Bwari Area Council.
The plaintiffs’ case was essentially that upon the creation of the FCT, some areas of the FCT were specifically ceded to the natives who were resident in the geographical location called Abuja.
They argued that these natives exercised control over the ceded areas including Mpape, adding that the local chiefs and some of the natives sold many plots of land to individuals and organisations at Mpape.
They maintained that having bought landed properties from the local chiefs and natives, structures were erected over the plots of land transferred to them by the local chiefs and natives.
The plaintiffs claimed to have lived on those plots for different periods of time and had been paying different levies charged by the Bwari Area Council on behalf of the Federal Capital Development Authority, the Minister of Federal Capital Territory and the Department of Development Control.
They claimed that the four defendants were planning to demolish “the whole of Mpape” without serving them requisite notices as required by law and due process.
Their lawyer, Mr. Sola Egbeyinka, called 10 of the plaintiffs as witnesses in proving their case.
Apart from Bwari Area Council, which neither showed up in court nor filed any processes throughout the case which lasted over four years, the three other defendants – the FCDA, the Minister of Federal Capital Territory and the Department of Development Control – joined issues with the plaintiffs.
The three defendants called as the only defence witness, FCDA’s Site Officer for Mpape, Mr. Abdulrahman Raji.
Raji testified among others that the plaintiffs, like many others in Mpape, were illegal occupants occupying illegal layouts in the area.
According to him, in legally certified layouts, an occupant would be in possession of a Certificate of Occupancy, offer letter and a sighed Title Deed Plan which, he said, was the most important document.
The defence witness explained that illegal occupants such as the plaintiffs would not have any of the listed documents.
In his view, the plaintiff had “no cognisable legal right to the plots of land at Mpape as they were not statutorily allocated by the Minister of FCT who is the only person that can properly allocate land” in the FCT.
According to him, it was part of the procedures of the FCDA to call on residents to produce documents for authentication, an exercise, which, he said, normally preceded demolition.
He maintained that Mpape was not under the control of Bwari Area Council as indicated by the plaintiffs and that not all buildings at Mpape were illegal structures.
He explained that the affected houses were marked and had notices pasted on them.
Insisting that the statutory notices for demolition of illegal structures were duly served, he said, “the demolition is in respect of unapproved buildings on unapproved layouts.”
In his 70-page judgment delivered on February 2, 2017, Justice Abubakar Kutigi addressed all the issues put forward by the plaintiffs.
Dealing with the prayers sought by the plaintiffs one-by-one, Justice Kutigi held that the plaintiffs failed to put any evidence forward to prove the size of Mpape put at 400 hectares and its population which they put at two million.
He also noted that “the unchallenged evidence of DW1 (defence witness) is that demolition exercise affected only unauthorised buildings in unauthorised layouts at Mpape”.
Curious prayers of plaintiffs
But the judge in deciding the case on the merit noted that “it is rather curious” that none of the eight reliefs sought by the plaintiffs “relates to or seeks a pronouncement with respect to a declaration of title or even possession in their favour of the disputed plots…”
The judge then set out the following questions in determining the case:
*Whether the court has jurisdiction to hear and determine this action?
*Whether the plaintiffs have proved their case to entitle them to all or any of the reliefs south and their amended statement of claim?
He predicated the second issue on the following questions:
*Who owns the disputed Mpape land within the FCT?
*Who has authority over allocation of lands with the FCT?
*Whether the plaintiffs have established their legally recognised interest over the plots of land in Mpape Village?
As resolved in the defendants’ notice of preliminary objection, the court ruled that it possessed the requisite jurisdiction to determine the case.
In resolving the second issue, the court answered the questions that followed it, as partly stating that it would amount to being sentimental to hold that the local chiefs referred to by the plaintiffs could validly grant, sell or issue customary allocations of any plot of land in the FCT to anybody.
“I am therefore in no doubt that the land agreements, power of attorneys tendered by plaintiffs do not serve the purpose of allocating or granting possession of the disputed plots of land at Mpape.
“This perhaps explains why learned counsel for the plaintiffs did not, in any of the reliefs, seek a declaration of owners or possession of the disputed plots of land at Mpape.
“This appears to me a subtle acceptance or realisation that application of land within the FCT is indeed exclusively that of the Minister of the FCT.”
Dealing with the prayers sought by the plaintiffs one by one, Justice Kutigi held, that the plaintiffs failed to put any evidence forward to prove the size of Mpape put at 400 hectares and its population which they put at two million.
He also noted that “the unchallenged evidence of DW1 (defence witness) is that demolition exercise affected only unauthorised buildings in unauthorised layouts at Mpape”.
Steps before demolition
The judge however highlighted the steps under sections 47, 48, 50, 53, 55, 56, 57, 61, 62, and 63 of the Nigerian Urban and Regional Planning Act 2004, that must be taken before demolition of illegal structures could validly take place.
The judge in highlighting the steps, stated,
“Under the Section 91 of the interpretation section of the NURP Act, enforcement notice includes ‘stop notice, contravention notice and demolition notice’.
“Section 48 (1) states that the enforcement notice may direct the developer to either alter, vary, remove, discontinue a development.
“Section 50 provides, in express and mandatory terms by the issue of the word ‘shall’, what an enforcement notice under Section 47 should contain and these are:
“Be in writing and communicated to the developer.
“State the reasons for the proposed action of the control department;
“Consider any representation made by a developer or on behalf of a developer.”
According to the judge, before the issuance of an enforcement notice, Section 53 mandates the control department to issue a “stop-work order” in a situation where an unauthorised development is being carried out or the development does not comply with a development permit.
Section 56 is said to have provided a timeline of 21 days within which the developer is expected to comply with the requirements of the land.
“It is equally important to point out that a stop-work order shall cease to have effect if within 21 days of the issue, the enforcement notice is not served vide Section 57 except the period of time within which a stop-work order shall remain in force is extended,” the judge ruled.
How not to evict, demolish
The court ruled that it was irrelevant that the plaintiffs’ structures were built on illegal layouts at Mpape, the steps highlighted must be followed.Copyright PUNCH.
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