Conviction Of Funke Akindele: A Litany Of Unforced Errors By Prince Azubuike Esq

It is no news that the popular Nollywood actress, Funke Akindele and her husband Abudul Rasheed Bello had been convicted and sentenced accordingly for the offence of gathering more than twenty persons, contrary to the Regulation issued by the Executive Governor of Lagos State, Babajide Sanwolu, prohibiting the gathering of more than twenty persons in the state in order to curb the spread of the Covid-19 Pandemic.

Recall that the Nollywood star, in course of celebrating the birthday of her husband, invited some friends to her Lekki residence where a get-together party took place. It was on this basis that the Lagos State Government filed a one count charge upon which they were convicted having pleaded guilty.

It is my candid view that the entire trial, (Arraignment, Conviction and sentencing) was glossed with not just irregularities but also illegality and cannot survive an appeal for the reasons stated hereunder:

Firstly, on a lighter note, going by the directive of the CJN Hon. Justice I. T. Mohammed, the defendants ordinarily shouldn’t have been arraigned within the period they were arraigned because the CJN had earlier issued a directive for courts to hear only urgent matters that are time bound and custody cases. The trial of the defendants did not fall within the categories of matters stated in the widely circulated circular of the CJN to have warranted the trial of the defendants given the global health emergency the world is into.

Secondly, the defendants (now convicts) were not in violation of any offence known to law upon which their conviction would have been based. It is an elementary principle of law that an act or omission is only a crime if it is so prescribed by a written law. See the case of Aoko v. Fagbemi (1961) 1 All NLR p. 40; Section 36 (12) CFRN 1999 (as amended). For purpose of clarity, I shall reproduce the one count charge hereunder:

COUNT 1

That you (1) Funke Akindele (2) Abdul Rasheed Bello on the 4^th day of April, 2020 at 9, Gbadamosi Close, Amen Estate, Igbeju 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) and (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.

As can be gleaned from the charge, the extant laws upon which the charge was based were the Lagos State Infectious Disease Regulation, 2020 and Public Health Law of Lagos State, 2015. Ex abundati curtelia, Regulation 8(1) of the Infectious Disease (Emergency Prevention) Regulation, 2020 provides thus:

8(1)  The Governor may –

• Restricts or prohibits 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.

On the other hand, section 58 of the Public Health Law of Lagos State provides as follows:

Section 58  For any contravention 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).

It is imperative to re-iterate that the defendants were convicted for gathering more than twenty persons. As can be seen from the laws upon which the defendants were charged which I have painstakingly reproduced, I make bold to say that there are no provisions in the two extant laws or any other law in Lagos State that makes a gathering of more twenty persons a criminal offence.

The Infectious Disease Regulation did not codify any offence, it only empowers the Governor of Lagos State to restrict gatherings given the Covid-19 pandemic and there is no law that translate the directives or instructions of the Governor of Lagos State or any other state into law, and where there is a violation of same, such cannot be the basis of criminal responsibility.

Thirdly, the Infectious Disease Regulation of Lagos State is invalid in view of the Covid-19 Regulation of the Federal Government. Suffice to state that the Infectious Disease Regulation was made pursuant to section 8 of the Quarantine Act Cap. P2 LFN 2004. By virtue of the said section 8, the Governor is only empowered to make such regulations where the President fails to do so. It is on record that the President on the 30^th day of March, 2020 did issue the Covid-19 Regulation restricting movements in Lagos, Abuja and Ogun States respectively. The implication of this is that, by the operation of the Covid-19 Regulation, the Infectious Disease Regulation of Lagos State becomes inoperative as both cannot co-exist. See the case of A.G Fedration v. A G Abia State (2001) All FWLR (Pt. 65) 488 at 331. In the case of Ogun State v. A G Federation (1982) 1-2 SC (Reprint) 7, the Supreme Court, per Fatayi-Williams CJN (as he then was) stated the law as follows:

“If parliament enacts a law in respect of any matter in which both parliament and a regional legislature are empowered to make laws, and a regional legislature enacts an identical law on the same subject matter, the law made by parliament shall prevail” see also Saraki v. FRN (2016) NWLR (Pt. 1500) 76.

The principle of pre-emption (covering the field) is to the effect that the Lagos State Infectious Disease Regulation 2020 cannot co-exist with the Covid-19 regulation issued by the President of Nigeria. Furthermore, any issue having to deal with Quarantine is solely within the purview of the Federal Government as elucidated in the second schedule, Part 1 Item 54 of the constitution of the Federal Republic of Nigeria 1999 (as amended) as it is in the exclusive legislative List

Fourthly, was the punishment imposed by the trial court on the defendants valid? With respect to the trial Magistrate, the punishment cannot be valid in view of the punishment section of the charge, i.e. section 58 of the Public Health Law of Lagos State. The said punishment section recognizes only two forms of punishment, to wit:

1. A fine of N100,000.00 (N500,000.00 for corporate bodies) or
2. A non-custodial sentence

The trial magistrate however, sentenced the defendants to two weeks of community service in addition to the fine of N100,000.00 each. It is trite that words in a statute must be given their plain and ordinary meaning. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296, similarly, in Saraki v. FRN supra, the Supreme Court, per Kekere-Ekun, JSC noted that, when interpreting the provision of a statute, the court must not ascribe meanings to clear, plain and unambiguous provisions in order to make such provisions conform to the court’s view of their meaning or what they ought to be. By imposing both punishment, the court had interpreted that section to suit its psyche which in law is not permissible. Furthermore, where the word ‘or’ is used in a statute it is disjunctive and not conjunctive. It follows that imposing a fine and also sentencing the defendants for two weeks community service negates the spirit and letter of the law. This is even more disturbing when the Quarantine Act provides a fine of N200.00. the question then is, can a subsidiary legislation supersedes the substantive or parent legislation? The answer is a capital no.

In all, it is my humble view that the Lagos State Law in which the defendants were charged is purely erroneous and ultra vires as it negates the provisions of the constitution on the principle of covering the field, it is my advice that the defendants should appeal this judgment in order to remove the clog of ex-convicts that has been yoked on their neck.

Prince Azubuike Esq. Partner, West Law Solicitors Port Harcourt Prince.azubuike@outlook.com