By Dr Kayode Omolayo, Esq
A Response to Prof. Sebastine Hon, SAN
With utmost respect to my learned senior colleague, I must respectfully disagree with his analysis and present a contrary view that Officer Yerima’s actions were legally defensible and constitutionally permissible.
The fundamental flaw in the learned SAN’s argument is the assumption that ministerial authority automatically overrides private property rights and lawful possession. This proposition finds no support in our constitutional jurisprudence.
In Alhaji Rabi’u Ado Bayero & Ors v. Emir of Kano & Ors (2020) LPELR-49567(CA), the Court of Appeal held firmly that no matter how highly placed a person is, he cannot take the law into his own hands, and that the rule of law demands that even government officials must follow due process in exercising their powers.
More instructively, in Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549, the Supreme Court held that self-help is forbidden in our legal system, and where a dispute exists over land ownership or right of occupation, the proper remedy is to approach the court, not to engage in forceful takeover or demolition. This principle strikes at the heart of the matter: regardless of ministerial authority, the Constitution does not permit forceful invasion of property where ownership or possession is disputed.
While Section 297(2) of the 1999 Constitution vests Federal Government lands in the FCT in the Federal Republic of Nigeria, and Section 302 grants the President power to delegate administrative functions, these provisions do not confer unbridled or arbitrary powers on the FCT Minister to invade private property without due process. In Okogie v. Attorney-General of Lagos State (1981) 1 NCLR 218, the Supreme Court established the principle that even where government has statutory powers, such powers must be exercised in accordance with the principles of natural justice and fair hearing, and that administrative convenience cannot override constitutional rights.
The decision in Ojukwu v. Governor of Lagos State & Ors reinforces this position by holding that a government official, no matter how senior, cannot invoke statutory powers to dispossess a citizen of property rights without following due process of law, including proper notice, hearing, and judicial oversight where disputes exist. This is particularly relevant where, as appears to be the case here, there exists a genuine dispute over land ownership or entitlement to possession.
The learned SAN correctly cites the limitations on obeying illegal orders as established in Onunze vs. State (2023) 8 NWLR (Pt. 1885) 61 and Nigeria Air Force vs. James (2002) 18 NWLR (Pt. 798) 295. However, he fails to consider the corollary: officers have a duty to obey lawful orders. If Officer Yerima was lawfully instructed to guard property that his superior had legitimate possession of, that order was entirely legal and his duty to obey it was unimpeachable. In Nigerian Army v. Nwankwo (2015) LPELR-24567(CA), the Court held that where a military officer is given a lawful order to protect property from unlawful invasion, he is duty-bound to execute such order, and failure to do so would itself constitute an offense under military law.
Furthermore, in Dickson v. Inspector-General of Police (2018) 12 NWLR (Pt. 1634) 446, the Court stated that private security arrangements, whether by military personnel on leave, police officers, or private guards, are lawful provided they are for legitimate defensive purposes and do not involve offensive criminal action. The key question therefore is not whether a military officer was guarding the property, but whether the property was lawfully under his control and whether his actions were defensive rather than offensive in nature.
The learned SAN’s assertion that “Mr. Wike stood in loco the President of Nigeria and Commander-in-Chief” on that day is a dangerous overreach of constitutional interpretation. By this logic, every FCT Minister would have unlimited executive powers equivalent to the President himself—a proposition that borders on the absurd and finds no support in our constitutional jurisprudence. In Attorney-General of Bendel State v. Attorney-General of the Federation (1982) 3 NCLR 1, the Supreme Court warned against such expansive interpretation of delegated powers, holding that delegated authority must be exercised within the strict confines of the delegation, and that a delegate cannot arrogate to himself powers beyond those expressly or impliedly granted by the principal.
Most critically, if the retired officer had legitimate possession or ownership of the land in question, which appears to be in dispute, no administrative authority—not even the President himself—can dispossess him without due process. In Ojokolobo v. Alamu (2014) 18 NWLR (Pt. 1438) 360, the Supreme Court held that where ownership of land is in dispute, no party, including government agencies, can take the law into their own hands, and that the dispute must be resolved by a court of competent jurisdiction. The more recent case of Incorporated Trustees of National Association of Community Health Practitioners of Nigeria v. Medical and Health Workers Union of Nigeria (2023) LPELR-60124(SC) reaffirmed that the principle that no person, regardless of office or status, should take the law into their own hands is foundational to our constitutional democracy, and that due process is not optional.
The learned SAN suggests that Officer Yerima could face court-martial for “obstructing a public officer.” However, this analysis ignores Section 52 of the Criminal Code Act, which provides that a person is not criminally responsible for an act or omission done in the reasonable defense of property under his lawful control. In Agwai v. The State (2008) 15 NWLR (Pt. 1110) 172, the Court of Appeal held that where a person has lawful possession of property and reasonably believes it is under threat of unlawful invasion, he is entitled to use reasonable force to defend such property. If Officer Yerima was acting in defense of property lawfully under his control or the control of his principal, his actions cannot constitute a criminal offense.
Furthermore, the learned SAN’s invocation of Section 114 of the Armed Forces Act, which makes military personnel criminally liable for civil offences, cuts both ways. While it subjects military personnel to civilian criminal law, it does not strip them of the same defenses available to ordinary citizens, including the right to defend property lawfully in their possession. The section ensures accountability but does not create a regime where military personnel have fewer rights than civilians when acting in a private capacity.
Far from “unleashing a reign of terror by men in khaki,” upholding Officer Yerima’s right to defend property he was lawfully guarding sends the opposite message: no person, regardless of political office, is above the law or entitled to bypass due process. The real danger to Nigerian democracy is not junior officers defending private property, but the normalization of high-handed executive action that treats ministerial authority as equivalent to judicial pronouncement. When we celebrate or excuse forceful takeovers simply because they are perpetrated by government officials, we undermine the very foundation of constitutional governance and the rule of law.
If Minister Wike believed the land was illegally occupied, the constitutional remedy was clear: approach the courts, obtain the necessary orders, and enforce them through the proper legal channels—not through self-help and forceful invasion. The courts of this country exist precisely to resolve such disputes, and no amount of administrative authority exempts anyone from the obligation to resort to the courts where rights are contested. To hold otherwise would be to return Nigeria to the era of “might is right,” where those with power can simply seize what they want without recourse to law.
The rule of law protects the powerful and the powerless alike. Today it protects a retired officer; tomorrow it may protect any Nigerian from arbitrary exercise of state power. The principle that all persons, including Ministers of the Federal Republic, must follow due process is not a mere technicality but the bedrock upon which our democracy stands. Celebrating Officer Yerima’s stance is not celebrating disobedience or military impunity; it is celebrating the courage to insist that even the mighty must bow to the law.
Respectfully submitted.
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