Nigerians on Monday, 6th April 2020 were greeted by the news of the first legal casualty of the Lagos State Infectious Diseases (Emergency Prevention) Regulation 2020. It was the conviction of an actress Funke Akindele and her husband Abdul Rasheed Bello by a Magistrate Court sitting in Ogba, Ikeja for an alleged offence of contravention of the social distancing directives of Mr. Governor of Lagos State.
Following the guilty plea of the defendants, the Magistrate Court passed a non-custodial sentence of 14 days Community Service of three hours each day, excluding Saturday and Sunday in addition to a fine of N100, 000 each. The punishment also included a visit by each of them to 10 important public places within Lagos State to educate the public on the consequences of non-compliance with the restriction order. They are also to submit the names and phone numbers of every person who attended the birthday party organized by the couple.
The defendants were arraigned on a one count charge of contravening the social distancing directives of Mr. Governor of Lagos State made pursuant to Regulation 8(a) & (b) and 17 (1)(i) of the Lagos State Infectious Diseases (Emergency Prevention) Regulation 2020 and punishable under section 58 of the Public Health Law, cap. P16, Volume 9 Laws of Lagos State, 2015.
WHY IS THE CONVICTION WRONG IN LAW?
The penultimate (enacting) paragraph of the preamble to the Infectious Diseases (Emergency Prevention) Regulation 2020 expressed that the Regulation was made by the Governor of Lagos State, Mr. Babajide Sanwo-Olu pursuant to the Public Health Law, cap P16 Laws of Lagos State 2015, and section 8 of the Quarantine Act, cap Q2 Laws of the Federation of Nigeria 2004 having regard to the provisions of sections 2, 3 and 4 of the Act. The State Regulations came into force on 27th day of March 2020.
Firstly, the Governor under the Public Health Law of Lagos State 2015 is not donated with the power to make Regulations. The Power to make Regulations is vested on the Commissioner for Health by virtue of sections 43 and 53 of the Law. While a Governor of State can validly make Regulations under section 8 of the Quarantine Act before the President of the Federal Republic of Nigeria had exercised the powers; the State Regulation so made must cease to have effect immediately the President exercises his powers under sections 3 and 4 of the Act. The COVID-19 Regulations, 2020 made by the President came into force on 30th March, 2020. From this date, the COVID-19 Regulations, 2020 became the operational Regulations in force in Lagos and Ogun State and the FCT. Therefore, the Infectious Diseases (Emergency Prevention) Regulation 2020 of Lagos State was short-lived and had only a lifespan of 3 days. It follows that charges brought pursuant to Regulations 8(1)(a) & (b) and 17(1)(i) are incompetent, null and void.
Secondly, the conviction cannot stand because the COVID-19 Regulations 2020 do not contain the equivalent provisions in Regulations 8(1)(a) & (b) and 17(1)(i) of the Infectious Diseases (Emergency Prevention) Regulation 2020 of Lagos State which enables the Governor to restrict or prohibit the gathering of persons in the Local Area, such as conferences, meetings, festivals, private events, religious services, public visits, and such other events, save where the written approval of the Governor is obtained for such gathering. Regulation 1(1) of the COVID-19 Regulations, 2020 provides for the cessation of all movements in Lagos, Ogun and FCT for an initial period of 14 days with effect from 11pm on Monday, 30th March 2020. Sub-regulation (2) orders all citizens in the affected areas to stay in their homes. Regulation 4 of the COVID-19 Regulations, 2020 enjoins citizens to make personal sacrifice. This can be understood to be a call for voluntary compliance to the Regulations. The necessary extrapolation from the above is that the conviction is contrary to section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The section provides, “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a state, any subsidiary legislation or instrument under the provisions of a law. See the case of Aoko v Fagbemi (1961) 1 All NLR 400 in which section 21(10) of the Constitution of the Federation of Nigeria 1960 the equivalent of section 36(12) of the 1999 Constitution was considered and a conviction for adultery by the Ijebu-Ijesha Grade ‘D’ Customary Court quashed .
WOULD IT HAVE BEEN LAWFUL TO CONVICT THE DEFENDANTS IF THERE WAS AN EQUIVALENT OF THE LAGOS STATE REGULATIONS IN THE COVID-19 REGULATIONS?
The COVID-19 Regulations, 2020 expressly prohibits movements in the affected Local Areas- Lagos, Ogun and FCT but silent on private events or events happenings within the confines of one’s resident. Had there been an equivalent provisions limiting the number of persons at a gathering, the conviction of the Bellos would have stood notwithstanding that they were charged under a Regulation that have ceased to effect. In Yabugbe v COP (1992) 4 NWLR (Pt.234) 152, it was held that where an offence known to law is presented in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his Counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice. See also the case of Adonike v State (2015) 7 NWLR (Pt.1458) 237 where the appellant was charged under the repealed Criminal Code of the defunct Bendel State but was convicted thereunder since there was the existence of a similar provision in the existing Criminal Code of Delta State.
In view of the reasons adduced viz: the nullifying effect of COVID-19 Regulations 2020 on the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020, and the absence of the equivalent provision of Regulations 8(1)(a) & (b) and 17(1)(i) of the Infectious Diseases (Emergency Prevention) Regulation 2020 of Lagos State in the COVID-19 Regulations 2020, the inevitable conclusion is that the Bellos conviction based on an offence unknown to law is unconstitutional and therefore null and void.
By John Collins Nwobodo, Esq
