Following the conviction of Funke Akindele and her Husband by the Ikeja Magistrate’s Court, many legal issues have arisen.

The following points are noteworthy about the Lagos State Infectious Disease (Emergency Control) Regulation, 2020, Public Health Law, Lagos State, Quarantine Act and the conviction of Funke Akindele (Jennifer) and the Husband.

The Governor of Lagos State relied on 2 Laws to make the Regulation; the Quarantine Act and the Public Health Law of Lagos State.

Hence:

1. Quarantine is an item under the Exclusive Legislative List (item 54) in Second Schedule to the 1999 CFRN (as amended) . Hence, not within the legislative competence of any state. Notwithstanding that the Quarantine Act empowers the Governor of a state to make Regulation in pursuance thereof, such Act of the National Assembly is inconsistent with the provision of the Constitution (item 54 of the ELL) and by virtue sec 1(3) of the Constitution shall be declared null and void. See Dr. Olubukola Abubakar Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531

2. The Governor of Lagos State is not empowered to make regulation pursuant to the Public Health Law of Lagos State. Sec. 53 gives the Commissioner such power. Where the Governor exercises same it becomes void. See Union Bank of Nigeria PLC & Anor v. Ayodare & sons (Nig) Ltd & Anor (SC. 375/2001) [2007] NGSC 90 (27 April 2007)

Moreover, His Excellency did not specify the particular section that empowers him to do so after saying that he was exercising “plenitude of powers”.

3. Making regulation on the same subject matter by the President pursuant to the Quarantine Act impliedly repealed that earlier made by the Governor of Lagos State. See. A.G, OGUN STATE v. A.G, FEDERATION (1982) 1-2 S.C. (REPRINT) 7

Hence, such Regulation dies a natural death and one cannot be tried on a non-existent law. See Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400.

4. Assuming but not conceding that the Regulation made by Lagos State Government is valid, it creates no offence but further empowers the Governor to issue Directives (remember that the power to make the Regulation was reserved for the Commissioner).

5. A directive or an order of a Governor is not a law and violation of same cannot result in criminal liability. See Faith Okafar V. Governor of Lagos State & Anor. (2016) LPELR-41066 (CA).

6. The Directive they were tried under was made by the Lagos State Government on the 18th, March, 2020 in a press conference, whereas the Regulation was passed into law on the 27th March, 2020.

The Regulation provides under section 1(1)(2) that all acts done prior to the commencement of these Regulations to curtail the spread of Covid-19 are hereby ratified.

This makes the Regulation to have retrospective effect which is not allowed under Constitution. See section 36(8) of the 1999 CFRN 1999 (as amended). See LAKANMI & ANOR. V. AG. WEST & ORS. ( 1970) JELR 33695 (SC), Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400.

7. Neither the Public Health Law of Lagos State nor the Regulation prescribes that gathering is an offence. Hence, the purported directive of the Governor of Lagos State is advisory.

8. Section 58 of the Public Health Law cited in the charge sheet provides for the punishment with fine of N100,000.00 “or” to any non-custodial sentence. However, they were punished with both notwithstanding that they are in the alternative.

POST CONVICTION:

One may ask what is the solution now they pleaded guilty and were convicted?

In law, once an accused person had pleaded guilty to a charge as laid against him by the prosecution before a Court of law and consequently convicted on his own plea of guilt, there is generally only two circumstances in which an appeal against conviction upon a guilty plea can be entertained, firstly; that the Appellant did not understand and appreciate the nature of the charge to which he had pleaded guilty or that he did not intend to admit that he was guilty of the offence charged. Secondly, that upon the facts as admitted by the accused person, he could not, in law, have been convicted of the offence charged. See NKIE V. FRN (2014) LPELR 22877 (SC), per Onnoghen J.S.C. This was reaffirmed in IDRIS v. FRN (2018) LPELR-44713(CA)

Flowing from the foregoing, they can take advantage of the second exception to go on appeal since upon the admitted facts their act did not amount to any crime defined in a VALID WRITTEN LAW.

ALTERNATIVE OPTION:

On the flipside, there was no valid law upon which they pleaded guilty to, it means that everything done thereto amounts to nullity. Hence, the court did not have jurisdiction to try the matter in the first instance and the issue of jurisdiction can be raised at any time, even for the first time on appeal. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, C.G.G. (Niq) Ltd. v. Ogu (2005) 2 S.C. (Pt. II) 50.

WRITTEN BY: Chinedu Innocent Nwobodo, 08165191968, [email protected].