The Nigerian Polity was awakened by news of the Arrest, Detention and Prosecution of officials of Caverton Helicopters (two pilots) including the closure of their offices in Port Harcourt by the Executive Governor of Rivers State for violating the Governors Covid 19 Declaration and containment orders by flying passengers into the state without clearance, notice or authorization by the State Government .

In a State Broadcast on Wednesday, Rivers State Governor, Nyesom Ezenwo Wike directed Local Government Council Chairmen to close the Offices of Caverton Helicopters across the state and consequently declared them persona non grata after the Government arraigned the Pilots who flew in the passengers into the state

Does Governor Wike reserve the right to direct, restrict flights into the State.

The Law is clear as enshrined in Section 5(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter referred to as The Constitution) that

‘’… the Executive Powers of a state shall be exercised by the Governor of a state…’’

This confers the Governor with powers to make order, directives or proclamation for the protection of life and property of the Good people of Rivers State in order to preserve and maintain the territorial supremacy of the state.

However, this power has been carefully limited and whittled down by the Constitution in Section 5(3)(a) the Constitution as not to be exercised amongst others to impede or prejudice the exercise of the executive powers of the Federation. For the avoidance of doubt, the provision is hereinafter reproduced:

(3) The executive powers vested in a State under subsection (2) of this section shall be so exercised as not to:-

(a) impede or prejudice the exercise of the executive powers of the Federation;

(b) endanger any asset or investment of the Government of the Federation in that State; or

(c) endanger the continuance of a Federal Government in Nigeria.

The effect of this provision illustrates the fact that the for the powers of the Governor of any State in Nigeria to be valid it must be exercised in a manner as not to undermine , impede or run contrary to the powers of the Federation as enshrined in the Constitution. The beauty of this dichotomy is further fortified by the allocation of matters by the Constitution (in the Second Schedule) to the Federal, State and Local Governments for which they have exclusive and Concurrent rights respectively to legislate upon. Consequently, by such allocation, the Federal Government is empowered by statute to legislate on matters contained in the Exclusive List, while the State is correspondingly empowered to legislate on matters contained in the Residual List. The essence of this division is to guarantee clarity of responsibility and Democratic supremacy.

To this end, it is necessary to state that Aviation, including airports, safety of aircraft and carriage of passengers and goods by air are matters specified in Item 3 of Part 1 to the 2nd Schedule of the Constitution of the Federal Republic of Nigeria as being under the Exclusive legislative list and for which only the Federal Government through the instrumentality of the National Assembly has the powers to legislate, make orders or pronounce upon. This position the Court in Horsfall v Rivers State Polytechnic and anor (2018) LPELR-45954(CA) recognized.

It is therefore stunning that the Government of Rivers State proceeded to ascribe powers for which it does not possess constitutionally by

restricting flights into the state without clearance or authorization of the State (a matter that clearly falls within the ambits of aviation).
Arresting Caverton Pilots that flew the passengers into the state on an alleged offence of breaching the order of the Governor, an act having no legal foundation.
Let me at this point reiterate that pursuant to the Constitutional Provisions and the case laws on the Exclusive right of the Federal Government to legislate on matters on the Exclusive Legislative List, it follows logically that only the Federal Government can make valid consequential Orders on any matter that affects items on that list.

While this writer, acknowledges the powers of the Governor to make laws and issue directives for the protection of the property and people of Rivers State , it is contended that such actions must be exercised within the bounds of law, and must not be one which tramples on the rights of individuals and corporate establishments. If the management of Caverton Helicopters got the necessary clearance to fly passengers and goods into Rivers State from the Federal Government which is the organ statutorily responsible by law to issue such clearance, they need not seek further authorization of the State Government before flying into the State. Insisting on special authorization of the State simply because an Executive Order by the Governor imposes fling restriction is demanding the performance of illegality by Caverton Helicopters by the Rivers State Government.

Let me also point out that Executive Orders have no statutory recognition or definition under Nigerian Laws and do not override or enjoy equal status with extant provisions of the Law, that is to say that where an Executive Order is found to be in contravention of the Provisions of the Constitution, that Order shall to the extent of its inconsistency be declared null and void (a position fortified by Section1(2) of the Constitution.

The law was created for the Government of Rivers State and not Rivers State Government for the law, the directives by the Governor restricting Caverton flights, declaring them perona non grata subsequent arrest and prosecution of its pilots is completely illegal and cannot be justifiable in law. The Governor cannot in an attempt to love its citizens insist on the violation of the dictates of the Constitution in the guise of an Executive Order.

ARREST AND PROSECUTION OF THE PILOTS

Let me preliminarily deal with this misconceived notion about the Executive order of a Governor or President being the basis for Criminal Prosecution. It is very clear from the provisions of Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 that

‘’ 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’’

This Provision firstly, clearly renders any Executive Order or regulation forming the basis of a Criminal Prosecution invalid, unlawful and consequently as a matter of law, any conviction emanating suo motu from same is one likely to be set aside on appeal and declared null and void. The authority of Aoko v Fagbemi (1961) 1 All N.L.R. 400 is decisive on this fact

Additionally, it also makes any prosecution of an offender by the Dictates, directives, regulation of the President or Governor by way of Executive Order illegal, oppressive and unlawful.

The Caverton Pilots were arraigned on a 4 count charge at a Chief Magistrate Court in Port Harcourt for intentionally disobeying the Lawful Order of the Governor and conducting themselves in a manner likely to constitute breach of peace respectively thereby committing an offence punishable under the Criminal Code CAO 37, Vol 11 Laws of Rivers State of Nigeria, The Quarantine Act and the Quarantine (Corona Virus (Covid-19) and other Infectious Diseases) Regulations 2020. They were also said to have contravened Section 2,4 and 8 of the Quarantine Act, Regulations 11 of the Quarantine (Corona Virus (Covid-19) and other Infectious Diseases) Regulations 2020.

It is submitted respectively that these sections (Specifically, Section 2 and 4 Of the Quarantine Act) are of no assistance to the alleged offence committed by the Pilots. While Section 2 and 4 of the Quarantine Act deals with the Interpretation Section and the Powers of the President to make regulations pursuant to the Act.

Consequently, Violation of Regulation 11 of the Quarantine (Corona Virus (Covid-19) and other Infectious Diseases) Regulations 2020 does not constitute violation of an ‘offence known to law’. The authority of Section 36 (12)of the constitution as stated earlier fortifies this position. This fact it appears the office of the Attorney General already knew hence the brilliant attempt to link the alleged offence committed to ‘disobedience to lawful order’ which violation constitutes the violation of an offence known to law (Criminal Code CAO 37 Vol 11 Laws of Rivers State of Nigeria).

While this writer concedes to the fact that ‘disobedience to lawful order’ is an offence known to Law as expressed in the provisions of the Criminal Code CAO 37 Vol 11 Laws of Rivers State of Nigeria, he however questions the Legality of the Order of the Governor in issuing a directive on a subject matter (Aviation) within the exclusive jurisdiction of the Federal Government. This quizzes the question as to whether the Executive Order of Governor Wike on the restriction of flights into the State can be said to be Lawful.

DOES THE EXECUTIVE ORDER OF GOVERNOR WIKE CONSTITUTE LAWFUL ORDER.

It is necessary to state that an executive order does not enjoy any definitive precision under our laws and can best be classified as an order made by an Executive authority touching a subject matter for which it has full powers to pronounce upon.

It is imperative to state that such order must as a matter of compulsion preliminarily pass the test of Legality in order to be valid. Their Validity must primus inter pares find its gait and life on the stratum and extancy of laws validly in force in order to be binding and Legally enforceable. That is to say that an executive order is only lawful when they are exercised within the confines of constitutional or statutory powers hence an Executive Order that contravenes Constitutional Provision does not qualify as Lawful Order and cannot be the basis of Criminal Prosecution under the extant provisions of the Criminal Code Laws of Rivers State as violation of Lawful Order (for which the pilots were charged with) especially as it is a hallowed principle of law in the celebrated case of Macfoy v UAC Ltd 196 AC 153 that ‘you cannot place something on nothing and expect it to stand’.

CONCLUSION.

While the efforts by the Governor of Rivers State in ensuring that Covid 19 Pandemic is contained in the State is commendable (especially as the State currently records 2 controllable cases), it is therefore contended that the directives of the Governor on Restriction of flights into the State constitutes a flagrant violation of provisions of the Constitution that categorizes Aviation and carriage of passengers and goods as an item on the Exclusive Legislative List for which only the Federal Government has the powers to Legislate upon.

It is the writers opinion that the tussle between the Federal Government and the State Government in an occasion such as this is needless especially as the collective effort of the State and Federal Government are required in the fight against this Pandemic.

In the interest of Peace, the rule of law and the Nigeria Criminal Jurisprudence, Caverton Pilots that have been remanded in custody should be released immediately and the restrictions placed on their premises lifted. This would forthwith preserve the untainted image of the Rivers State Government as a State with respect for the Rule of law and Democracy especially as the World is watching g to see how Nigeria controls this Pandemic.

Wriitten by Uche Okereke