I am particularly constrained and compelled to write with respect to the action-packed movie-like scenes “played, directed, produced, marketed and distributed’ by the “dramatis personae” of the Lagos State Government which manifestly occasioned a flawed, inappropriate, erroneous and awry sentence on Funke Akindele Bello and her husband.

I have also read in the electronic media that the “drama kings” are still thirsty of securing more sentences against all persons who attended the said birthday parlor party.

I am honestly not in consonance with the attitude of Funke Akindele Bello and her husband for organizing a parlor party to celebrate the birthday of her husband not only with a gathering of such high number of persons, but in flagrant disregard for the social distancing rules, particularly at a time that her services had been engaged by Dettol to be an ambassador of the Company to sensitize the public on preventive measures to curtail the spread of the globally rampaging pandemic: COVID-19. Once again, I am strongly opposed to Funke Akindele Bello and her husband for such ineptitude and arrogance, as the release of the video on social media platforms is an indication of impunity taken too far.

Beyond her ambassadorial role, Funke Akindele carries a moral responsibility as a public figure and one of the ambassadors of Nollywood, rather than putting herself in an avoidable unpleasant mess.

Having asserted my moral disposition towards the issue, the desiderata of my write-up is to consider the legality or otherwise of the summary trial conducted against Funke Akindele Bello and her husband by the Lagos State Government, which occasioned summary conviction and sentence on Funke Akindele and her Husband.

In an effort towards ensuring a legal anatomy on this matter, I will have to address the matter under two sub-headings, as follows:

WHETHER THE INFECTIOUS DISEASE (EMERGENCY PREVENTION) REGULATIONS 2020 (the Regulation) IS AN EXERCISE IN EXECUTIVE LAWLESSNESS
The Governor of Lagos State in the preamble of the Regulation stated as follows:

“Now therefore, I, Babajide Olusola Sanwo-Olu, Governor of Lagos State, in the exercise of the plenitude of powers conferred on me in that regards by the Lagos State Public Health Law, and in particular, by Section 8 of the Quarantine Act ……..”

It is necessary to point out that while the Governor expressly and unequivocally mentioned the section that empowers him to make the Regulation under the Quarantine Act, the Governor has failed to expressly mention any of the Sections that empower him to make the Regulation under the Public Health Law of Lagos State. This may not be unconnected to the fact that the Lagos State Public Health Law by Sections 43 and 53 have not given the Governor any power to make any Regulation in this regard.

For clarity and better understanding of the fact that the Governor has no power to make the Regulation, I will reproduce the provision of Section 8 of the Quarantine Act from which the Governor claimed he derived his power, so that we can give it a cursory look together.

Section 8 of the Quarantine Act provides that:

“If and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof as fully as such power may be exercised by the President, and subject to the same conditions and limitations.”

By virtue of the above provision of the Act, it is obvious beyond doubt that the power of the Governor to make any Regulation with respect to the subject matter can only be ignited when the President has not taken any steps to make any Regulation in that regards. Hence, once the President makes a Regulation in that regards as done by President Buhari on the 30th March 2020, any such Regulation made by the Governor is in abeyance, and it will enter into thin air and fade into oblivion, as the two Regulations cannot co-exist at the same time.

It is therefore not out of place to assert that the Regulation signed by the Governor of Lagos State has been spent and remain in abeyance because the President who has been principally empowered by the Quarantine Act has signed a Regulation in this regard. The power of the Governor under the above Section 8 is subservient to that of the President.

Sections 43 and 53 of the Public Health Law of Lagos State cited earlier conferred the power to make Regulation of this nature on the Commissioner for Health, Lagos State and not the Governor. The implication therefore is that the Regulation signed by the Governor and used to charge Funke Akindele and her husband is in flagrant violation of Section 43 and 53 of the Public Health Law of Lagos State, as the Commissioner for Health and not the Governor is the one specifically mentioned to make the Regulation.

On the basis of the two laws on which the Governor premised his powers to make the Regulation, it is safe to conclude that the Quarantine Act has rendered the power of the Governor in abeyance, while the Public Health Law has not even empowered the Governor in any form to make any such Regulation.

Having properly X-rayed (and found baseless!) the powers of the Governor to make the Regulation as above, it will be correct to say that we are left only with the directives of the Governor placing a ban on a gathering of persons above 20, among others, made at different times prior to and during the lockdown.

On the basis of the “weight” of a Governor’s directives, there is a need to also highlight that the Court has decided that the directive of a Governor, no matter how brilliantly made, cannot be equated to be a Law on which criminal sanctions will lie.

The Court of Appeal in recent judgment of FAITH OKAFOR V GOVERNOR OF LAGOS STATE & ANOR (2016) LPELR-41066 (CA) succinctly put thus:

“I find worrisome the contention of the Respondents that the directive of the Governor can be equated to law for which criminal sanctions will lie, and A PERSON TRIED AND CONVICTED FOR THE OFFENCE OF VIOLATING THE DIRECTIVE OF THE GOVERNOR…… I FIND IT SHOCKING THAT THE DISOBEDIENCE OF THE DIRECTIVE OF THE GOVERNOR IN THIS REGARD HAS BEEN ELEVATED TO A CRIME FOR WHICH CRIMINAL SANCTIONS ATTACH, AS IN THE CONVICTION OF THE APPELLANT AND THE FINE IMPOSED ON HER”. Emphasis mine.

Based on the foregoing, I therefore challenge the Lagos State Governor, having proven baseless the Regulation he signed, to point out where it is expressly stated in the Public Health Law and/or any other Law of the State that the gathering of 20 persons constitutes an offence. It is noteworthy that it was only made an offence by the directives of the Governor, which has been addressed above by the Court of Appeal to be a mere directive that cannot on its own carry the force of law. The above authority cited ended the monthly environmental sanitation in Lagos State because the Court of Appeal said that the directive of the Governor to mandate monthly environmental sanitation must be written. The Governor cannot turn himself into a Law where he will issue directives and same will convict people.

In the regards, the Court has no jurisdiction to convict Funke Akindele and her husband on an offence unknown to law because the Regulation that defined the offence is null and void. See Section 36(12) of the 1999 Constitution as amended.

There is no existing Law enacted by the Lagos State House of Assembly as we speak or Regulation that has criminalized the gathering of more than 2o people. Therefore, the conviction of Funke Akindele, if challenged on Appeal will be quashed as it is obviously entered per incuriam.

Since the 2020 Infectious Disease Regulation of the Governor is null and void, the alleged offence of Funke Akindele and her husband is unknown to the law cited in the Charge Sheet; as such, the couple cannot be convicted of a crime not defined and penalty not prescribed in any written law. See Section 36(12) of the 1999 Constitution as amended, AOKO V. FAGBEMI (1961) ALL NLR 400, OMATSEYE V FRN (2017) LPELR-42719, HON. HEMBE V. FRN (2014) LPELR-22705, ASAKE V. NIGERIAN ARMY COUNCIL (2007) 1 NWLR (PT. 1015) 408.

WHETHER THE TOTALITY OF THE JUDGMENT OF THE MAGISTRATE COURT IS NOT SUPERFLUOUS, CAPABLE OF RENDERING THE WHOLE JUDGMENT NUGATORY
It is very pertinent to quickly bring to the domain of the public that the judgment of the Court against Funke Akindele and her husband by the Magistrate Court is inconsiderate, erroneous, inchoate, lacking in merit and flaccid in statutory flavors.

Flowing from the foregoing, I sincerely intend to take the public on a voyage of legal analyses with a view to exposing the illegality of the said judgment. Thus, this can only be further appreciated by reproducing the One-Count charge against Funke Akindele Bello and her husband for proper explanation, which is produced as follows:

“That you, Funke Akindele, Abdul Rasheed Bello on the 4th day of April 2020 at 9, Gbadamosl Close, Amen Estate, lbeju Lekki in the Lagos Magisterial District gathered at the aforementioned address with over twenty persons contrary to the social distancing directives of Mr. Governor of Lagos State made pursuant to Regulation 8(1)(a) & (b) and 17(1)(i) of the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 and thereby committed an offence punishable under Section 58 Public Health Law Cap P16 Vol.9 Laws of Lagos State, 2015”

To this end, assuming without conceding that the Infectious Disease Regulation 2020 of Lagos State is valid, I strongly close my eyes against the provisions of Regulation 8(1)(a) & (b) and 17(1)(i) because they merely defined the offences or better put, they are definition Regulations not capable of conferring the Court with jurisdiction to sentence an offender. Those Regulations so to speak, only explain the offences Funke Akindele and her Husband committed. However, the operational law stated by the Lagos State Government in the Charge upon which the Magistrate Court can and did sentenced Funke Akindele and her husband is Section 58 of the Public Health Law of Lagos State, which provides as follows:

“For any contravention of the provisions of this Law or any Regulation made under this Law for which no other penalty is provided, the offender commits an offence and is liable on conviction to a fine of One Hundred Thousand Naira (N100,000.00) or to any non-custodial sentence and if a corporate body, to a fine of Five Hundred Thousand Naira (N500,000.00).”

Assuming without conceding that the Magistrate Court has jurisdiction to entertain the matter, by stating the above provision in the charge sheet as the punishable section on which Funke Akindele and her husband shall be punished, a painstaking perusal of the above provision is to the effect that the word “OR” used in the provision connotes that the punishments are disjunctive and not conjunctive, meaning that the Court can only pronounce either of the punishments on Funke Akindele and her husband at a time. The two punishments of FINE and NON-CUSTODIAL SENTENCE CANNOT be pronounced by the Court on Funke Akindele and her husband and every other persons found wanting in this regards.

The Court was really carried away probably by the appearance of the Learned Silk, Hon. Attorney General of the State thereby substantially violating the Lagos State Public Health Law stated in the charge. It is an elementary principle of law, which has usually been judicially noticed by the Court that “No Court can exercise its discretion beyond the maximum punishment stipulated by an Act or a Law, but can only grant lesser punishment”. See LAWRENCE V. FRN (2018) LPELR-44510, PETER USHIE V. THE STATE (2012) LPELR-9705

Therefore, the judgment of the Ogba Chief Magistrate delivered on the 6th of April 2020 sentencing Funke Akindele and her husband to a 14 days community service and N100,000.00 fine runs contrary to the unequivocal provision of section 58 of the Public Health Law: as such, it is null and void ipso facto and of no effect whatsoever.

Please, take note that the judgment is valid and subsisting as we speak until it is challenged on appeal. Hence, if Funke Akindele and her husband fail to appeal it, the judgment will remain a reference on the subject, and the couples will remain ex-convicts after serving the punishment imposed by the court, unless pardoned by the State Governor.

My arguments above would have been pocketed had the Governor been statutorily empowered to make the 2020 Regulation. I would have at least find justification for the judgment of the Court. However, since the Governor has conferred on himself the powers to make Regulation as against the provision of Section 43 and 53 of the Public Health Law, then, the entirety of the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 is not only null and void but also of no legal validity whatsoever and it is capable of being thrown into the Juristic and Executive trashcans.

In as much as I am aware that I cannot cry more than the bereaved, I only address this issue to educate all other persons to be tried in this regards of the options available to them and as for Funke Akindele and her husband, that they have the option of Appeal, which shall be successful on the ground of jurisdiction and manifest illegality of the said judgment as the judgment doesn’t conform with Statute.

Well, if Funke Akindele and her husband will not challenge this manifest illegality on appeal, they will have to serve the punishment imposed on them by the Court as Convicts, after which they will remain Ex-Convicts for the rest of their lives, other things being equal.

If the judgment will not be challenged in an appeal, I passionately appeal to the pity of the Lagos State Government to grant Funke Akindele and her husband State Prerogative of Mercy by virtue of Section 212 of the 1999 Constitution of Nigeria as amended.

Finally, I feel indebted to also advice the Lagos State Government to jettison the Regulation signed by the Governor on the 27th March 2020 and allow the COVID-19 Regulation 2020 signed by the President to continue to enjoy the force of Law in the State.

Thank you

Fatai A. ADEBANJO (LP)