Brushing sentiments aside, I hereby condemn in totality the actions of the Naval Officer, A.M. Yerima, who obstructed the FCT Minister from gaining access to that parcel of land, under the guise of ‘obeying superior orders.’ The duty of a junior officer to obey the orders of his superiors, even though strongly upheld in military and paramilitary circles, has its own limitations recognised by no other authority but the Supreme Court of Nigeria. I shall establish this anon
In the recent case of Onunze vs. State (2023) 8 NWLR (Pt. 1885) 61 at 108 SC, the Supreme Court held emphatically, per Ogunwunmiju, JSC, thus:
“My Lords, the obligation to obey the orders of a superior does not include orders that are palpably illegal or manifestly unjust. Every military or police officer swears an oath upon commissioning. The Oath is not to obey all orders; it is to “preserve”, “protect”, and defend the Constitution of the Federal Republic of Nigeria against all enemies, foreign and domestic. When an officer obeys palpably illegal orders, they become personally liable for their actions and would be expected to face court-martial or official sanction for the wrongdoing.”
In the earlier decision of Nigeria Air Force vs. James (2002) 18 NWLR (Pt. 798) 295 at 324 SC, Onu, JSC, delivering the lead judgment of the Supreme Court, held firmly, subjugating military personnel to civilian authority and disparaging obedience to illegal orders, as follows:
“See the case of Pius Nwaogu v. The State (1972) 1 All NLR 149 where it was held, inter alia, that “a soldier is responsible to 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.’”
The illegality in that order stems primarily from the fact that no service law of the military permits a serving military officer to mount guard at the private construction site of his boss, especially under suspicious circumstances like this. The retired Naval Officer ought, under the circumstances, to have engaged the civil police if he suspected the likelihood of arson or criminal trespass.
Additionally, Barr. Nyesom Wike is the equivalent of a state governor – he is the Minister of the Federal Capital Territory, Abuja. More importantly, all lands in the FCT Abuja, as per Section 297(2) of the 1999 Constitution of Nigeria, as amended, belong to the Federal Republic of Nigeria. By section 302 of the same Constitution, read together with other extant Acts of the National Assembly, the President of Nigeria has delegated all powers with respect to land administration in the FCT Abuja to the Hon. Minister. Going by constitutional and administrative law, therefore, Mr Wike stood in loco of the President of Nigeria and Commander-in-Chief of the Nigerian Armed Forces on that fateful day. Consequently, even if the superior officer were still in service, he would not disobey Mr Wike or obstruct him from entering the land. This was an affront to the civil authority of Mr. President.
The Minister’s method may be brash; but it is legal and lawful in all respects. Rather, it is the officer who obstructed him who has breached not just the Nigerian Constitution, but also service and extant regulatory laws. For the avoidance of any doubt, section 114 of the Armed Forces Act makes military personnel criminally liable for civil offences. This means the officer in question could be arraigned before a Court Martial for obstructing a public officer from performing his public duties, et cetera.
In conclusion, celebrating the humiliation of Nyesom Wike, simply because he is a ‘big man’ or simply because he is not liked by certain persons begs the real issue here. If such intolerable conduct by the young officer is not punished or is celebrated, this may unleash a reign of terror by the men in khaki against hapless civilians, with a grin or boast that ‘we did it to Wike and nothing happened.’ This is not the Nigeria of our dream!
I rest my case here.
Prof. Sebastine Hon, SAN
(Constitutional Lawyer and Author)
