Omnibus Chambers

14/07/2023

COURTS ARE SET OUT IN RIGHTING THE WRONGS IN THE SOCIETY.

Per Sidi Dauda Bage, Retired Justice of the Supreme Court of Nigeria said in the case of SALEH v. ABAH & ORS (2017) LPELR-41914(SC).

“This Court must take the lead, in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our waters are and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity. The Nigerian Constitution is supreme. It desires that no one who had ever presented forged certificate to INEC should contest election into Nigeria’s National Assembly. This is clear and sacrosanct. More compelling as a judicial determination had been taken by no less a technical panel sitting in, at least, a panel of three judges as Election Tribunal with constitutional mandate to determine such issues as they relate to elections and its outcomes, including eligibility. This has also been affirmed by the trial Court in this appeal. On these issues, our duty is to apply the Constitution and the law in its start, original form undiluted by ‘colourated’ interpretations.” (Pp 26 – 31 Paras E – B)

14/12/2022

PRIVATE LEGAL PRACTITIONERS OR CITIZENS CAN PROSECUTE WITHOUT THE AUTHORITY OR FIAT OF ATTORNEY GENERAL - SUPREME COURT OF NIGERIA

The Supreme Court of Nigeria has drastically changed the long held position of the law that it is only the Attorney General of the State that can prosecute or authorized the prosecution of criminal complaints in the Courts. According to the Apex Court, the provision of the Administration of Criminal Justice Law (ACJL) giving powers to private legal practitioners or private citizens to prosecute without the authority of the Attorney General of the State is not in conflict with Section 211 of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended) that vest exclusive powers on the Attorney General to prosecute or authorize prosecution by fiat.

This new position of the law and very interesting development in our jurisprudence is clearly captured in the recent decision in the case of RAPHAEL OBIJIAKU V CHIEF JOE OBIJIAKU & 2 ORS (2022) 17 NWLR (PT. 1857) 377 at 405 Paras E- F, where Aboki JSC held,

"A private legal practitioner or indeed a private citizen, has the indisputable right, under section301(1) of the Anambra State Administration of Criminal Justice Law, 2010, to lay a complaint and prosecute same, without the fiat of the Attorney General of the State"
M. O. Idam Esq.

27/11/2021

A PREPARATORY PRESS BRIEFING MARKING THE KICK-OFF OF INTERNATIONAL DAY FOR ELIMINATION VIOLENCE AGAINST GENDER AND 16 DAYS ADVOCACY AGAINST GENDER VIOLENCE.

Share This:          A PREPARATORY PRESS BRIEFING MARKING THE KICK-OFF OF INTERNATIONAL DAY FOR ELIMINATION VIOLENCE AGAINST GENDER AND 16 DAYS ADVOCACY AGAINST GENDER VIOLENCE. Ladies and gentlemen of the press, distinguished guests and partners, It is my honor and privilege to welcome you...

02/12/2020

WHETHER DOCUMENT IN SUPPORT OF PLEADED FACTS NEED BE PLEADED.

ADEOYE & ORS v. ADEGOKE
(2014) LPELR-22423(CA)

ISSUE
PLEADINGS : Whether document in support of pleaded facts need be pleaded

PRINCIPLE
''The law is elementary, that a document in support of facts pleaded need not be pleaded. It can be tendered in support of facts pleaded. AMADI V. OLUMATI 1995. 7 NWLR PART 410. PAGE 739 @ 744; MONIER CONSTRUCTION CO. V. AZUBUIKE 1990 3 NWLR PT.136, 74; ODUNSI V. BAMGBALA 1995 1 NWLR PT.374, 641; OJOH v. KAMALU (2006) 6 WRN 110 SC.'' Per PEMU, J.C.A. (P. 26, paras. E-F)
CITED CASES
AMADI V. OLUMATI 1995. 7 NWLR PART 410. PAGE 739 @ 744

29/05/2020

THE LAW SERIES®: WHEN IT IS NECESSARY TO SERVE A NOTICE TO QUIT.
Where a tenant is in arears of rent for a specific period provided by statute, a Notice to Quit becomes irrelevant.

Once the tenancy has been determined by effluxion of time, a Notice to quit becomes irrelevant. Thus, from the day the tenancy expires by effluxion of time, the landlord is NOT under any obligation whatsoever to issue the tenant a notice to quit. The Landlord is only required to serve the statutory _'7 days Notice of his Intention to Recover Possession'_ on the tenant. - ( _paraphrasing) the Court of Appeal in SPLINTERS (NIG.) LTD v. OASIS FINANCE LTD (2013) 18 N.W.L.R. (PT. 1385) 188 AT 220;_ relying on the Supreme Court in IHEANACHO v. UZOCHUKWU (1997) 2 N.W.L.R. (PT. 487) 257 AT 268-270, H-A.

14/05/2020

THIRD-PARTY INSURANCE COVER: WHAT YOU DON'T KNOW.

What your car insurers won't tell you- Your N5,000 third-party car insurance gives you 1 Million Naira Cover.

Why do Nigerians bicker when their cars are involved in minor accidents? It is usually argued that the reason is that most Nigerian vehicle owners do not have "comprehensive insurance cover."

Most Nigerian car owners believe that the N5,000 third party insurance does not cover anything. The belief is that it is procured just to avoid the trouble from police officers who check vehicle particulars on the highways. But is that true?

That is a big lie. That so-called meaningless N5,000 insurance cover that you think is just for the police gives you a cover of N1,000,000 (One Million Naira) for any damage to any person's property. Just open your glove compartment now, bring out your car insurance and read it. If it is not written on the front page, turn the leaf and check for it. You will see that the N5,000 you paid to the insurance company is not to fulfil all righteousness and escape police wahala. It is meant to protect you from fighting with another road user in the event of an accident. It is meant to ensure that you don’t hand over N100,000 or N300,000 to another road user because your car damaged the person’s headlamp or bumper or fender or bonnet. It also has an unlimited cover limit for any death or bodily injury you cause a third party with your vehicle.

So when you hit someone's vehicle or damage someone's property or injure someone or even kill someone, as long as your N5,000 insurance is valid, your insurance company will pay that person the cost of the damage within One Million Naira, if it is property, but if it is bodily injury or death, the amount may be decided mutually or by the law court.

It is called third-party insurance cover because it does not cover losses you incur in an auto accident. You are the first party; the insurance company is the second party; while any other person hit by your vehicle is the third party. So you have insured your car for any damage done to any other road user. If you want your car to be covered, you do the comprehensive insurance.

But if you and someone hit each other and damage each other's vehicles and both of you have that N5,000 insurance cover, the person's insurer should pay for the damage to your vehicle, while your insurer should pay for the damage done to the person’s vehicle.

So when Nigerians are involved in minor accidents, there is no need for all the drama they engage in. They just need to confirm that the other party has a valid N5,000 insurance cover. And because of the fear of the police on the highways, most private car owners have that insurance. Only the drivers of private intra-city commercial buses usually default in this.

However, when you want to renew your insurance cover, don't give it to touts to do for you, to avoid spending your money to get a fake document. Check around you for the nearest office of an insurance company, broker or agent, or check for the list of Nigerian insurance companies online and send a message to them. They may even come to your office to collect the material.

That many Nigerian car owners or drivers don’t know their right is to the advantage of the insurance companies. What it does for them is that most people who are involved in road accidents do not report such to their insurers. Most car owners ignorantly pay the other party, if such is demanded, and go away to repair their vehicle. Sometimes, the owner of the vehicle decides not to collect any money and goes on to repair the vehicle. Such people are prayed for and called good men or women.

Naturally, the insurers do not bother to explain to those who patronise them what their rights are. Most times, vehicle owners do not even get the vehicle insurance cover themselves. They give money to a tout to procure it. Ironically, getting an insurance policy for a vehicle is the easiest paper one can get for a vehicle. Unlike other vehicle-related documents like driving licence, road-worthiness licence, vehicle licence, proof of ownership, registration number document and the like, the insurance cover is the only one that is not issued by a government agency. Therefore, it does not involve any bureaucracy, which usually causes delays which lead to bribery and corruption in the name of “processing fee.” There is nothing to process in an insurance policy. Just like banks are open all over the country looking for customers, so do insurance companies have branches and outlets all over the country looking for patrons. And just as banks are regulated by the Central Bank of Nigeria, so are insurance firms, brokers, and agents regulated by National Insurance Commission.

Once you make a payment to the insurance firm, your details and the details of the car are entered and your policy certificate is printed out. The document contains the policy number as well as your certificate number, which you will quote in the event of any claim. You can immediately verify the genuineness of your insurance by entering your policy number or vehicle number in the portal of the Nigerian Insurance Industry Database (NIID). If there is any hanky-panky, you can immediately report the insurance company, and the individual or company will be penalised.

The interesting thing about vehicle insurance is that the amount (N5,000) is so small that no vehicle owner should find it hard to pay annually. And one should not wait for it to expire for even a day before renewing it. It is even better to renew it a week or so before its due date to avoid any story. Accidents don't give a notice before occurring.

If a car owner wants to add N100,000 cover for his vehicle, he can take the N7,500 special policy. This package covers the third party for up to N1,000,000, but covers you for up to N100,000. This will ensure that anytime you have a minor accident, your insurance company can take care of it for you.

But if you want your insurance company to take full responsibility, then you can go for the comprehensive cover, which is usually about 5 percent of the worth of your car. This will also cover the third party.

The ignorance about vehicle insurance is similar to that about health insurance. Most Nigerians do not know that they can insure themselves for about N20,000 annually and get treated throughout the year in good hospitals.

It is said that knowledge is power.

03/05/2020

ADMISSIBILITY OF A PUBLIC DOCUMENTS:

The reasoning in the case of MOGAJI V ODOFIN (1978) 4S. C. 91, is that apart from the interplay of the application of legal principles, cases are essentially decided on the quantum or quality of evidence adduced and admitted by the Court.

This rubric or treatment does not however pretend to be exhaustive. Before delving into the pith of this enquiry, it is expedient for us to briefly examine the meaning of public documents.

By the provision of section 102 of the Evidence Act, 2011, the following documents are public documents:
(a) documents forming the official acts or records of official acts of
(I) sovereign authority
(II) official bodies and tribunals or
(III) public officers; legislative, judicial and executive whether of Nigeria or elsewhere and (b) public records kept in Nigeria of private documents.

A) Our first enquiry centers on the position of the law where the original of a public document is irrecoverably lost or destroyed so that it is impracticable to tender a certified copy of the original.

The question here is what course the court should adopt in doing substantial justice to the parties. The arguments here polarize along two distinct routes. The first argument is erected on the premise that the Evidence Act is explicit on the fact that the only type of evidence admissible to prove the content of a public document is the certified copy of the document but no other kind of secondary evidence is admissible. See section 90(1) (c) of the Act.

This reasoning connotes that where the original of a public document is irrecoverably lost the party who seeks to rely on the said document is left without remedy. It is pertinent to state that this position has been adopted and applied by our courts to throw out a number of claims in a slew of decided cases. For instance in ARAKA V EGBUE (2003) 17 NWLR (pt 8481) this question fell for determination by the Court. Niki Tobi JSC after a painstaking appraisal of a legion of the apex court’s decisions, in his usual stylistic erudition penned thus:
Exhibit 1 being a public document, the applicable provision in the first instance is section 97(1) (e ) and 2 (c ) of the Act…
It is clear from section 97 (2 ) (c ) that the only acceptable secondary evidence of a public document is certified copy of the document.

The section has put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible. See ONOBRUCHERE V ESEGINE (1986) 1 NWLR (Pt 19 ) 799 ; NZEKWU V. NZEKWU (1989) 2 NWLR (Pt 104 ) 373.

The question begging for answer here is whether it can be rightly argued that upon a sober or clinical examination of the above section, there is to be found such legislative intent? Herein does the second prong of the argument on this issue sprouts. It is an axiomatic principle of our jurisprudence that remedies and rights are correlative. This is often captured in the latin maxim ubi Jus ubi remedium.

What is discernible from this principle is that the court must not render itself helpless and hapless where a person’s right has been violated or infringed upon. In the light of this principle, can it be rightly contended that the intent of the framers of the enunciated provisions of the Evidence Act in the cases already cited is to shut the door of justice against a party who for no fault of his, was unable to obtain a certified copy of a public document? Especially where there exists a photocopy of the said document, the authenticity of which can be verified by the officer who ordinarily has custody of the original? I think not. While I agree that the courts must kowtow to the clear intent of the framers of the law, it is my humble view that the courts would be doing extreme violence to the provisions of the Evidence Act to deny a party who has a reasonable cause of action, access to the portals of justice as done in the cases cited supra on the ground that the original of a document cannot be found.
Thus, where a public document forms the epicenter or the nucleus around which other issues pivots such that a rejection of same pulls the bottom off a party’s case, the court must search for ways of remedying the situation instead of denying such a party access to justice outright. My contention in the main is that where a public document forms the nucleus of a party’s case, the court should with due respect adopt a liberal interpretation of the applicable sections of the Act and in fact admit a secondary evidence of same tendered through the officer who ordinarily has custody of the original.
The court must astutely and at all times strain every nerve to ensure that the hallowed or magisterial prescriptions embedded in the maxim referenced ante is not struck down.

B) The next limb of our enquiry concentrates on whether the original of a public document is admissible without certification. This enquiry shall also polarize along two distinct paths. We proceed on this voyage by the examination of relevant provision of the Evidence Act. By the tenor of section 88 of the Evidence Act, documents (not excluding public documents) shall be proved by primary evidence except in cases mentioned in the Act.

The first argument which our courts have given continuous espousal is to the effect that the content of a public document is required by section 90 of the Act to be proved by a certified copy of the document but no other secondary evidence is admissible See LAWSON V AFANI CONT. CO. NIG. LTD. (2002) 2 NWLR (pt. 752); PHILIP ANATOGU V. IGWE IWEKA 11 (1995) 8NWLR (pt. 415) 547; OBADINA FAMILY & EXECUTORS OF CHIEF J. A AJAO Coker JSC held that the combined effect of the subsection is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other.
It is contended along this line of reasoning that one of the reasons for requiring the tendering of the certified copy is to preserve the original. Thus the original of a public document is inadmissible without certification. However, it is hard to distil this rigid position taken by our courts from a marriage of the relevant provisions of the Act. I would like to contend on the footing of section 88 of the Act that it cannot either expressly or by inference, be rightly distilled from the Act that original of a public document is inadmissible per se. The phrase “the only type of secondary evidence and none other” which the courts have relied on to hold that the original of a public document is inadmissible, cannot in my humble view be construed to exclude the original of a public document. This is because the emphasis in the phrase is not on the noun “evidence” but on the adjective “secondary”

The point being made here is that a true construction of the sentence reveals that it is only where a secondary evidence of a public document is sought to be put in evidence, that only a certified copy of same and none other is admissible. The law is settled that the court must not read into an enactment meanings not decipherable from it. This position was endorsed by the Court of Appeal in the case of DAGASH V. BULAMA (2004) 14 NWLR (pt. 892) .144.
The court posited thus: “the only type of secondary evidence” does not seem to me to exclude primary evidence from being admissible. Section 93 of the Evidence Act provides that the content of a document may be proved either by primary or secondary evidence.
Section 94 defines primary evidence as the document itself. Section 96 of the Evidence Act provides that documents must be proved by primary evidence except…

“The law which needs no authority is that the best form of evidence is primary evidence. Again when one understands that the original of a document in most cases is more than one, it makes mincemeat of the argument that the original if tendered will be lost. It is therefore my humble view as can be gleaned from the marriage of the relevant provisions of the Evidence Act that the original of a public document is not excluded either expressly or by implication. This position was endorsed in the recent case of GAMBO IDI V. THE STATE. OGUNBIYI JSC where he referred to a similar decision in KWARA STATE MIN OF AGRIC V. SGP NIG LTD. (1998) 11 NWLR (pt. 575) @ 583 where it was stated that a public document is admissible as primary evidence without certification. It may be added that where the original of a public document is sought to be tendered, the question should not be about certification or custody but it should be about the maker.

C) We shall now pithily examine whether the photocopy of a certified true copy of a public document is admissible. This issue has also thrown up tons of conflicting judicial opinions. InINTERNATIONAL BANK NIG. LTD. V. DABIRI & 2 ORS (1998) 1 NWLR (Pt. 583). 284 It was held that the photocopy of a certified true copy of a public document needs no further certification under section 111 (1) of the Evidence Act. Per OGBUAGU JSC. See also DAILY TIMES OF NIG LTD. V. CHIEF F R A WILLIAM (1988) 4 NWLR. (pt. 36) 526 .

However, in SHELL CO. LTD. V NWAOLU (1991) 3 NWLR (pt. 491) the court of Appeal held that photocopies of certified true copy of a public document are inadmissible. The point must be made that the reason de’tre for requiring certification of a public document is to establish its authenticity. It is argued that it would therefore be otiose to require further certification of a photocopy of a public document which has been certified and which still retains evidence of certification. This reasoning is valid in the sense that it saves a lawyer’s professional time and cost. On the other hand, the reasoning of the Court requiring certification is premised on the high level of fraud and forgery prevalent in today’s transactions. Thus in OGBORU V. UDUAGHAN (2012) 11 NWLR (pt 1211) . 357the court rejected the photocopy of a certified true copy of a public document on the ground that a photocopy of a certified copy of a public document must be re-certified because in this age of sophisticated technology, photo tricks manipulation cannot be ruled out and evidence produced in the context of section 97 (2) of the Evidence Act could be tutored and therefore not authentic. In the process of copying the original document it could be manipulated with the result that the copy which is in evidence does not completely and totally reflect the original and therefore not a carbon copy of the original. In most cases, the court is not in a position to detect such manipulation. It is safe to posit therefore that the photocopy of a certified true copy of a public document is inadmissible. However, some courts would most likely admit such photocopy where it is satisfied that there is no manipulation of same for as it is said, it would depend on whether the court is in a position to detect such manipulation.

D) We shall concisely consider the question of whether a private document which emanates from the custody of a public officer becomes a public document. Section 102 (b) of the evidence Act, provides that public document includes public records kept in Nigeria of private documents. In TABIK INVESTMENT LTD. V GTB (2011) ALL FWLR (pt. 602) 1592 @ 1607 this court held that a private petition sent to the police forms part of the records of the police and consequently a public document within the provision of section 109 (now 102) of the evidence Act. In AROMOLARAN V. AGORO (2014) 18 NWLR. (Pt. 1438) 153 the court held that a letter written to the Governor of a State in his official capacity by a person who is not a government official is a public document because it is a public record kept in Nigeria of private document. That despite being a private document, it acquires the status of a public document by virtue of forming part of official record and thus require certification for it to be admissible. It is safe to posit therefore that a private document which has gone into public records automatically acquires the status of a public document.

07/04/2020

Why The Conviction Of Funke Akindele Cannot Stand In Law

By Inibehe Effiong

INTRODUCTION:

The trial and conviction of actress Funke Akindele and her husband is legally flawed. The fact that they pleaded guilty does not foreclose a discussion on the case because the flaws that I intend to highlight are constitutional and jurisdictional in nature. Issues of jurisdiction can be raised at any time.

I have read the following: The Charge Sheet filed by the office of the Attorney General of Lagos State against Funke and her husband; the Public Health Law Cap. P16 Vol. 9 Laws of Lagos State, 2015; and the Lagos State Infectious Disease (Emergency Prevention) Regulations 2020.

I submit that Funke Akindele and her husband (the defendants) were convicted for a non-existent offence. The charge sheet shows that the two defendants were arraigned on a one count charge for gathering with more than twenty persons contrary "to the social distancing directives of Mr. Governor of Lagos State."

DEFENDANTS CHARGED FOR AN OFFENCE THAT IS UNKNOWN TO LAW:

The charge sheet against the defendants also state that the said social distancing directive contravened by the defendants was issued by the Governor in line with the regulations made by the Governor pursuant to the Public Health Law. In other words, the defendants were not charged under the Quarantine Act.

They were charged under Section 58 of the Public Health Law of Lagos State. For clarity, Section 58 of the Public Health Law cited in the charge sheet 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)."

The defendants were convicted for gathering with more than twenty persons. The material question is: is it an offence under the Public Health Law or Infectious Disease Regulations to do so? There is no provision under the Public Health Law or Infectious Disease Regulations that makes gathering with more than twenty persons a criminal offence.

The Infectious Disease Regulations purport to give the Governor the power to issue the social distancing directive. The legal defect in the directive on gathering is that it cannot be the basis for criminal liability. A subsidiary legislation like the Infectious Disease (Emergency Prevention) Regulations 2020 derives its authority and validity from a substantive law (the principal legislation). The regulations cannot extend such authority.

Since the Quarantine Act and the Public Health Law of Lagos State specifically limit offences to contravention of regulations made by the governor, it is outright illegality to charge Funke Akindele and her husband for contravening a directive of the Governor (which is outside the regulations itself). See Din V. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147.

An act or omission is only a crime if it is so prescribed in a written law. By virtue of Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person is guaranteed the fundamental right not to be convicted unless the offence is defined and the penalty is prescribed in a written law. It states as follows:

"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."

Let me reiterate that the Governor's social distancing directive that restrict gathering in Lagos State which the defendants purportedly contravened is not an Act of the National Assembly, or a Law of the Lagos State House of Assembly, neither is it a subsidiary legislation or an instrument under the provisions of the law.

Therefore, by the authority of Section 36 (12) of the Constitution, and the Supreme Court decision in Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400, the conviction of Funke Akindele and her husband is unconstitutional.

As I contended earlier, there is no provision in the Public Health Law of Lagos State or the Infectious Disease Regulations that makes a gathering of more than twenty persons or any gathering for that matter a criminal offence.

Regulation 8(1)(a) of the Infectious Disease (Emergency Prevention) Regulations 2020 cited in the charge sheet against the defendants provides thus:

8(1) "The Governor may -

(a) 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."

The above provision does not codify any offence. It only empowers the governor to restrict or prohibit gathering. The Infectious Disease Regulations 2020 should have expressly and specifically prescribed that gathering is restricted and prohibited in Lagos State before it can be relied upon to convict a violator in line with Section 36 (12) of the Constitution.

Since neither the Public Health Law of Lagos State nor the Infectious Disease Regulations has prescribed that gathering is an offence, the purported directive of Governor Sanwo-Olu remains an advisory.

The Court of Appeal in the case of Faith Okafar V. Governor of Lagos State & Anor. (2016) LPELR-41066 (CA) made it abundantly clear that the directive or order of a governor is not a law and that violation of same cannot result in criminal liability.

COMPETING REGULATIONS AND DOCTRINE OF COVERING THE FIELD:

The Infectious Disease Regulations was made by Governor Sanwo-Olu pursuant to Section 8 of the Quarantine Act Cap. Q2 LFN 2004 and the Public Health Law of Lagos State. However, Section 8 of the Quarantine Act only empowers the governor to make such regulations where the President fails to do so.

On 30th March, 2020, President Buhari issued the COVID-19 Regulations. In his regulations, the President made specific provisions restricting movement and imposing a lockdown in Lagos State. By the constitutional doctrine of covering the field, the regulations made by Governor Sanwo-Olu went into abeyance the moment the regulations made by President Buhari came into effect. Both cannot coexist.

The doctrine of covering the field was applied in the case of Attorney General of Ogun State V. Attorney General of the Federation (1982) 1-2 S.C. (Reprint) 7. where the Supreme Court per Fatayi-Williams, JSC, declared that the Public Order Act 1979 repealed all existing State laws on public order.

THE GOVERNOR HAS NO POWER TO MAKE REGULATIONS UNDER THE PUBLIC HEALTH LAW:

It should be further noted that under Section 53 of the Lagos State Public Health Law, the power to make regulations pursuant to that law is expressly vested in the Commissioner for Health; not in the governor. This raises more serious legal questions on the validity of the Infectious Disease Regulations issued by the governor.

REGULATIONS REQUIRES THE APPROVAL OF THE HOUSE OF ASSEMBLY.

Section 1 (1) of the Regulations Approval Law Chapter R4 Laws of Lagos State 2015 unequivocally provides as follows:

"Notwithstanding any provision to the contrary in any Law in the State, no regulation shall have effect unless laid before and approved by the House of Assembly."

Section 3 of the Regulations Approval Law further mandate that "all regulations made pursuant to the provisions of any enactment in the State shall be published in the Official Gazette after its approval by the House of Assembly."

The inescapable consequence of the above condition stipulated in Section 1 (1) of the Regulations Approval Law is that the Infectious Disease (Emergency Prevention) Regulations 2020 issued by Governor Sanwo-Olu to tackle coronavirus pandemic has not taken effect since it is yet to be laid before and approved by the Lagos State House of Assembly.

Since the charge against the defendants was brought under a regulation that has not been approved by the House of Assembly as required by law, the entire case - from the charge sheet, to arraignment, conviction and sentencing of Funke and her husband, is a nullity.

We cannot put something on nothing. This singular point is enough to nullify the conviction.

PUNISHMENT IMPOSED EXCEEDS THE LAW:

Apart from the above legal flaws, the punishment imposed on the defendants by the trial court is clearly overreaching and illegal. Section 58 of the Public Health Law of Lagos State under which Funke Akindele and her husband were convicted provides for only two forms of punishment. It 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)."

The trial court sentenced Funke Akindele and her husband to 14 days community service each, to start from 9.00am to 12 noon each day during which they are to sensitize the public on the COVID-19 pandemic in ten major areas of the state. They are also to pay a fine of N100, 000 each after which they would observe the period for isolation.

The implication of the expression "OR" as used in Section 58 of the Public Health Law is that the court can either impose a fine or a non-custodial sentence; the trial court cannot impose both.

The 14 days community service cm public enlightenment and the self-isolation imposed on Funke Akindele and her husband can be regarded as a non-custodial sentence. It was wrong for the trial court to additionally impose a fine of One Hundred Thousand Naira (N100, 000.00) on each of the defendants.

CONCLUSION:

The sum total of my submissions is that the conviction of Mrs. Funke Akindele and her husband cannot stand in law. They have the right to appeal against the judgment of the Magistrate Court to the High Court. I believe that the appellate courts will set aside the conviction.

Two possible options are available to the Lagos State Government if the restriction of movement is to be enforced through prosecution of offenders:

It is either the State Commissioner for Health issues fresh regulations pursuant to Public Health Law (this may be susceptible to the doctrine of covering the field) or the Attorney General of Lagos State invokes the COVID-19 Regulations made by President Buhari pursuant to the Quarantine Act to punish subsequent violators.

Notwithstanding the above, the judgment of the Magistrate Court remains binding until it is set aside on appeal.

Email: [email protected]