Lagos State Magistrate Court Does Not Have Jurisdiction To Sentence Funke Akindele By Ebi Robert

On the 6th of April, 2020, a Magistrate Court presided over by Chief Magistrate Aje-Afunwa sentenced popular Nollywood actress, Funke Akindele, and her husband, Abdul Rasheed Bello, to 14 days community service each. They were amongst others asked to pay fine of N100, 000 each for the violation of the Lagos State Governor’s Regulation.

The judgment was given on the 6th day of April, 2020, after the duo were charged for gathering twenty persons contrary to the Social Distancing Directives Prevention of Mr. Governor of Lagos State made pursuant to Regulation 8 (1) (a) & (b) and 17 (1) of the Lagos State Infectious Disease (Emergency Prevention Regulation 2020) and punishable particularly under two extant laws.

No doubt, the said directive which was said to have been violated was made pursuant to the said Regulation, which was also made pursuant to the Quarantine Act, 1929. The Quarantine Act, which is the Principal Act has provided in Section 5 to as follows: “A 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 both”. By the provision just cited, it is crystal clear that ordinarily the Magistrate Court has jurisdiction to hear this matter being that the offence is not a capital offence. Even by the punishment section which is Section 5 of the Quarantine Act, the Magistrate Court is believed to have jurisdiction to hear the matter. However, it is the writer’s contention that the Court does not for have jurisdiction.

See below the writer’s analysis:

1. By virtue of Section 4 of the Quarantine Act, 1929, the president has the power to make regulations pursuant to the Act subject to certain conditions and limitations.

2. Penalties prescribed in the Principal Act, which is the Quarantine Act is N200 or six months imprisonment or both and nothing more or less. It is a law that provides for an alternative punishment which is (are) mandatory or we can say, definite. Under our criminal justice system it is tagged as a definite punishment. Consequently, any punishment made in any regulation made pursuant to the Principal Act cannot or should not be more or less than that provided by the Principal Act.

3. The Lagos State Governor or any other Governor can only make such regulations or declarations as the case may be where the President has not done same.

4. However, where the governor of the state has made any regulation pursuant to the Act, and the President subsequently makes same that touches on some specific areas, that of the President covers the field; that of the President operates as a subsidiary legislation — that of the Governor operates only to the extent that that of the president has not touched on that area. To this extent, note these:

a. Quarantine is an item under the exclusive list in the Constitution;

b. Regulations made by the Governors is not a domestication of the Act, it only operates as a subsidiary legislation which has force of law as the Principal Act;

c. Regulations made by the Governor is not a legislation deemed to be made by the House of Assembly. The House of Assembly has no business with Quarantine as an item under the exclusive list;

d. The Act of covering the field in the context does not make Quarantine to appear to be an item which is found in the concurrent list, it only means that, that of the President overrides that of the Governor, being the one expressly empowered to make such a Regulation in the first place. The Governor only steps in where the President has not. So where the President steps in? Your guess is as good as mine!

Having considered these, let us look at Regulation 1 of the Convid-19 Regulations, 2020, which was made by the President and dated the 30th day of March, 2020. The said regulation provides for RESTRICTION/CESSATION OF MOVEMENT IN LAGOS, FCT, and OGUN STATE. To the extent, the President has restricted movement in Lagos State, right? The said Regulation by legal implication also restrict public gathering. However, by the exception stated in Regulation 1 (5) and (7), most precisely, court proceedings are suspended for now, only to the extent that they are URGENT or TIME BOUND. This order is made in line with the Chief Justice of Nigeria’s circular No: NJC/CIR/HOC/11631 of 23rd March, 2020.

By this Regulation which affects the FCT, Lagos and Ogun State, ordinary matters are not expected to carry on proceedings. That is to say, within the period the Regulation lasts having recognized the CJN’s circular, any proceedings that takes place in contravention of the Law is illegal. This robs the court of jurisdiction as whatever is done is not recognized by law. By Section 5 of the Quarantine Act, anyone who violates any provision of any regulation made pursuant to the Act has committed an offence and is liable to the punishment prescribed. By law, therefore, the court proceeding is an offence. Therefore the Magistrate has violated the law as well, can be sued and is liable.

Every court will assume jurisdiction only after the period stated by the law has expired. By a new notice on circulation on the 6th day of April, 2020, the directive of the CJN expires on the 7th day of April, 2020, which means that every matter which is not urgent or time bound that was attended to from the 24th day of March, 2020, to the 7th day of April, 2020 is in violation of the directive and the Regulation. Recall that the case of Funke was heard on the 6th day of April, 2020.

Although the Magistrate Court is a court of summary Jurisdiction, fact is that the charge upon which Funke and her hubby were charged is not URGENT or TIME BOUND. By law, urgent or time bound matters involves ex-parte applications seeking for interim injunctions and the likes, as well as election petition matters. If urgent matters are considered to be matters heard in courts of summary jurisdictions, it then means that all matters before the Federal High Courts are URGENT, being a court of summary jurisdiction as well.

Additional points to note:

1. While the Regulation made by the Lagos State Government sounds instructive in scope, that of the Nigeria’s President, though a regulation, carries the face of an ORDER. For instance, Regulation 1 (5) begins with THIS ORDER. Sub-regulation 2 says, “ALL CITIZENS IN THESE AREAS ARE TO STAY IN THEIR HOMES”. “ALL SEAPORTS IN LAGOS SHALL REMAIN” (Regulation 2 (1). In the case of the Regulation of Lagos State Governor, it always goes with a statement like: “THE GOVERNOR MAY DIRECT”, THE GOVERNOR MAY HAVE POWER TO DIRECT”, etc. It is purely instructive.

Implication: Except the directive made by the Lagos State Governor was done after the coming into force of the Regulation, every other directive made before the coming into force of the law is invalid.

2. Funke and her hubby were charged under Section 58 of the Public Health Law, CAP P16 Vol.9. Laws of Lagos State, 2015. The Regulation of the State Governor was made pursuant to the Public Health Law and the Quarantine Act. This makes the said Regulation a subsidiary legislation to both AN ACT of the National Assembly (Quarantine Act) and A LAW of the House of Assembly (Public Health Law) at same time. This is a strange procedure.
3. Except the sentence given fits into Section 58 of the Public Health Law, the sentence itself is questionable, considering the punishment section in the Quarantine Act. Recall that N100,000 fine is given and not N200.

WHAT FUNKE AND HER HUBBY SHOULD HAVE DONE AND WHAT THEY CAN DO:

1. Funke Akindele can appeal the decision for want of jurisdiction. If they succeed, the matter will be struck out. If this is not done, she and her husband will eventually become ex-convicts. This is a dint on their image. Already they are convicts.

2. If peradventure, the appeal succeeds, the Lagos State Government can re-arraign them. The duo can appeal to the State Government to withdraw the matter, and agree to do the community service and pay the said the money to the government, not as a court fine but a self-imposed fine to the government for the risk they have caused the state. This way, the government may not go back to court. This way, the dint could be off whilst satisfying the state as well. That is, if they are bothered about it anyway.

All the same, stay safe!

Legal arguments must still go no matter what.

By Ebi Robert