Introduction: On the 23rd day of March, 2020, the Federal Republic of Nigeria effectively shut down all her international borders to enable the country fight the menacing scourge of coronavirus disease already declared a pandemic by the World Health Organization. Concomitantly, given its upsurge in Lagos State, the Lagos State Governor, on Saturday the 21st day of March, 2020 banned all religious and social gathering of over 20 people. However, subsequently, on the 29th day of March, 2020, the President of the Federal Republic of Nigeria issued a Regulation in exercise of the powers conferred on him by Sections 2, 3 and 4 of the Quarantine Act (CAP Q2 LFN 2004), and all other powers enabling him in that behalf, effective 30th March, 2020, with a view to giving a legal backing to the various measures outlined in his National Broadcast on 29th March, 2020, such as Restriction/Cessation of Movement in Lagos, FCT and Ogun State and others toward containing the spread of the pandemic in the country.
Factual Background:
On the 6th day of April, 2020, the Director of Public Prosecution, on behalf of the Attorney-General of Lagos State filed [before the Lagos State Magistrate Court] a one-count criminal charge against the persons of (1) FUNKE AKINDELE (2) ABDUL RASHEED BELLO in a charge signed by one Y.G. OSHOALA, Esq. and marked MIK/A/43/2020 which its sole count reads as below:
That you (1) FUNKE AKINDELE (2) ABDUL RASHEED BELLO on the 4th day of April, 2020 at 9, Gbadamosi Close, , Amen Estate, Ibeju Lekki in the Lagos Magisterial District gathered at the aforementioned address with over 20 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.
Upon arraignment, the Defendants pleaded guilty to the one-count charge whereupon the presiding Magistrate convicted them on their own guilty plea and proceeded to sentence them to a fine of One Hundred Thousand Naira [N100, 000.00] and fourteen (14) days of community service.
The objective of the write-up: Since the conviction and sentencing of the Akindele couple, the charge and the entire proceedings culminating in the sentencing as highlighted earlier have come under diverse scrutiny by many lawyers across the country as to the validity or otherwise of both the charge and the entire proceedings that eventuated therefrom. I have read most of the opinions of my Learned Friends. My attention was especially drawn to the postulations of Mr. Inibehe Effiong [a wonderful colleague of mine] who in his article postulated that the trial, conviction and sentencing of the Akindeles cannot stand on appeal in view of the jurisprudence embodied in and projected by the following decisions: Din V. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147; Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400; Faith Okafar V. Governor of Lagos State & Anor. (2016) LPELR-41066 (CA); and Attorney General of Ogun State V. Attorney General of the Federation (1982) 1-2 S.C. (Reprint) 7 coupled with the propositions eventuating from a community reading and conflated interpretations of the following Legislations: Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Quarantine Act, 2004; Section 58 of the Public Health Law of Lagos State and Regulation 8(1)(a) of the Infectious Disease (Emergency Prevention) Regulations 2020. Having read all the relevant authorities undergirding the postulations of Mr. Inibehe Effiong [and other allied opinions], the present academic venture is aimed at correcting the erroneous conclusions drawn by Mr. Inibehe Effiong from those otherwise correct legal postulations and to convincingly demonstrate how those propositions of law relied on by Mr. Inibehe Effiong negates the conclusions he arrived at and contrariwise support the trial and confirm the validity of their conviction and a portion of the sentence which the Magistrate Court imposed on the Akindeles.
Secrion 36 (12) of the Constitution and it’s extrapolation: Section 36 (12) of the amended 1999 Constitution clearly provides 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.
Mr. Inibehe Eddiong’s right interpretation: In his article, after reproducing Section 36(12) of the Constitution as above and Regulation 8(1)(a) of the Infectious Disease (Emergency Prevention) Regulations 2020, Mr. Inibehe Effiong made these eye-popping summations:
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.
I concede that from a wider consideration of other authorities on this score, the legal postulations are totally correct in themselves. I agree! In fact I will go further than Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400 relied on by my Learned Friend to recall the more recent case of Olabode George vs. Federal Republic of Nigeria (2014) 5 NWLR (PT. 1399) P. 129 where in upholding the argument that contract-splitting was not an offence known to law, the Supreme Court [speaking through Fabiyi, J.S.C.] magisterially pronounced thus:
Even then, disobedience of Exhibit P3 is nowhere penalized in a written law. Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the court. It occurs to me that section 203 of the Criminal Code is not in tune with the dictate of section 36(12) of the 1999 Constitution. That being the position, the charges filed under section 203 of the said Code ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand… The charges framed against the appellant in respect of splitting of contracts and disobedience of guideline in Exhibit P3 is unknown to any written law at the material time. They rest on nothing in the face of the provisions of section 36(8) and (12) of the 1999 Constitution. They cannot stand as they fall flat. See: Macfoy v. UAC Ltd. (1962) AC 150 at 160.
The erroneous conclusions punctured: While I agree that the charge upon which the Akindeles were arraigned, convicted and sentenced contained or disclosed no offense known to Lagos State laws, the crucial question which Mr. Inibehe Effiong did not address was/is: whether there existed or exists any other valid law criminalising the conduct of the Akindeles and creating punishment for same even though their arraignment and conviction did not rest on that other law outside of the very law relied on by the Prosecutor as disclosed in the charge sheet? In other words, if there was/is a law already in existence and applicable in Lagos State which makes the impugned conduct of the Akindeles an offence and prescribes a punishment for same, an appellate court will uphold their conviction and sentencing notwithstanding that the offence with which they were charged and punishment prescribed therefore never existed in the law relied on by the prosecutor. Let me explain. In Adonike v The State (2015) 7 NWLR (Pt.1458) 237, after reproducing Section 36(12) of the Constitution which the Appellant’s appeal was clinging on, the Supreme Court [speaking through Okoro, J.S.C.] made this insightful clarifications:
Every principle of law is meant to streamline and clarify issues arising from any law in force and particularly the particular provision in question. It is also meant to guide the court, litigants and counsel. This court has, in its wisdom laid down the principle that an appellate court will not set aside the conviction of an appellant merely on the complaint that he was tried and convicted under a repealed law if at that time there was an existing law which he should have been tried and convicted. That principle of law is as sound today as it was in 1992 when the case of Yabugbe V. COP (supra) was decided by this court. Although the facts of that case are not the same as in the instant appeal, yet the principles laid down in it cannot be departed from in this case.
In that case, the Appellant had contended that the law under which he was arraigned prescribed that trials for such offences must be commenced within two months of which his trial commenced after the prescribed two months. In rejecting his argument and upholding his conviction, the Supreme Court expressed the view that in so far as there was an existing law in Delta State at the time of his trial which equally criminalised his conduct and prescribed punishment therefor, his conviction could be sustained by same even though the prosecution did not rely on that other existing law.
The doctrine of covering the field:
The gist of the “doctrine of covering the field” is to the effect that a State House of Assembly shall not make a law that challenges an Act of the National Assembly where the later has evinced and demonstrated a sufficient intention of taking care of the subject matter of such legislation(s). It also propounds that both the National Assembly and State Houses of Assembly are without constitutional powers to promulgate an enactment in a field where the constitution has already evinced the intention to cover and take care of. The case of Ex-Parte McLean (1930) 43 CLR 472 at 473 bears this out. This doctrine of covering the field was propounded in Australia by that famous Judge, Dixon J. in the well-known case of The State of Victoria & Ors v. Commonwealth of Australia & Ors (1937) 58 CLR 618 at 630.
It has been said that this ancient doctrine, which is now of venerable antiquity, is well entrenched in our Constitution and has equally received overwhelming endorsements of the Nigerian Supreme Court as borne out by these authorities; Lakanmi v. Attorney-General Western State (1971) 1 UILR 201 at 209; A-G Ogun of State v. A-G of the Federation (1982) 13 NSCC 1; A-G of Abia State & 35 Ors v. A-G of the Federation (2002) 3 S.C. 106; INEC v. Musa (2003) 1 S.C. (Pt. 1) 106.
The doctrine of covering the field has equally been expansively held to apply to instances where an Act of the National Assembly or the Law by a State Assembly either conflicts with constitutional provisions or even replicates same as confirmed by the Supreme court, per Uwais, C.J.N. (Rtd.) in A-G of Abia State & 35 Ors v. A-G of the Federation [supra], where it was stated thus;
“I agree that the doctrine of covering the field can conveniently be extended to apply to a situation where the Constitution has covered the field vis-à-vis a federal or state legislation, such legislation is not void simpliciter but will not be operative in view of the provisions of the Constitution. However if the legislation is inconsistent with the provisions of the Constitution, then, the legislation is void to the extent of the inconsistency vide Section 1 subsection (3) of the Constitution.”
The doctrine of covering the field supports Akindeles conviction:
Contrary to Mr. Inibehe Effiong’s conclusion, what the application of this doctrine has done in Akindele’s case is to affirm the validity of their conviction since we now know that there was indeed a valid Regulation by the President and which Regulation was applicable in Lagos and a violation of that Regulation is punishable under the Quarantine Act with a fine. In more specific language, Section 5 of the Quarantine Act amply provides that:
Any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or to imprisonment for a term of six months or to both.
On appeal, the Attorney-General of Lagos State could just invoke the Regulation of Mr. President which was the validly subsisting law [criminalising the very conduct in question and penalising same] at the time of the trial. The Supreme Court explained this much in Adonike vs. State (supra) where it taught us in this effulgent passage:
Although the appellant was tried under a repealed law, there was indeed in existence a written law in Delta State which defined the offence of defilement in Section 218 thereof and also prescribed the punishment for it as required under Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The said 2008 Criminal Code of Delta State (supra) has no provision for time limit within which to initiate a criminal prosecution against a person accused of the offence of defilement.
The conviction of the Akindele’s is unassailable: The application of the doctrine of covering the field in this context confirms rather than undermines the validity of the conviction of the Akindeles. This is because, although they were tried under a State law that was in abeyance [as admitted by Mr. Inibehe Effiong], there was an existing Federal law to the same effect [as admitted by Mr. Inibehe Effiong] under which they could have been tried. The Lagos State Attorney-General was within his province to have initiated the trial if there was a fiat of the Attorney-General of the Federation for him to prosecute under the exisiting Federal Regulation. The only window is for them [the Akindeles] to show that they and their Counsel were either misled by the charge or that their conviction resulted in a miscarriage of justice. This limited window of opportunity was opened by the Supreme Court and captured in the beautiful prose of Okoro, J.S.C who stated in Adonike vs. State (supra) thus:
There is a window of opportunity or a way of escape for an appellant who complains that he was tried and convicted under a repealed law. The first opening is for the appellant to show that he was misled or that his counsel was misled in the process of being tried under the repealed or non-existent law. OR that there was a miscarriage of justice arising from the trial the facts and circumstances of the Akindeles’ case would help them escape from this window on appeal remains to be seen if and when such appeal is lodged and determined.
After all, the Supreme Court, relying on its earlier decision in Yabugbe V. COP (1992) 4 NWLR (pt.234) 152 has emphatically held in Adonike vs. State (supra) that: ..a conviction under the wrong law is not fatal if there is the provision of another law under which conviction can stand – See Falobi V. Falobi (1976) NMLR 169 at 177 and Henry Stephens Engineering Ltd v. Complete Home Enterprise Ltd. (1987) 1. NWLR (pt.47) 400- at 448 – unless it can be shown that the accused was in fact misled by such error or a miscarriage has been occasioned by the reason of the error
I am left to conclude that Mr. Inibehe Effiong’s brilliant postulations of law are correct but he misapplied those sound propositions to the facts of the case resulting in some of the wrong conclusions he came to, which this short contribution has endeavoured to bring to light and correct. I think I can stop here, hoping that I have made the point.
* JIDEOBI, Abuja based lawyer can be reached on joannesmaria2009@yahoo.com OR 08131131942
