Only yesterday, my pen was scribbling so fast and spilling it’s ink advising Nigerians to Obey Emergency Laws and Regulations, using Funke Akindele’s Saga as a case study. Little did my pen know that the charge, trial, conviction and sentencing of Funke Akindele and her husband was only but a nullity which lacks bearing within the ambit of the Law (with due respect to the Magistrate Court where it was decided). This writer isn’t relaxing on his advice to Nigerians to Comply strictly to Emergency Laws in times like this but rather to point out the defective trial of the Celebrity Actress and her husband.

Worthy of note is the fact that, the Celebrity couple had a one count charge against them which was the gathering of more than twenty persons contrary to the social distancing directives of “Mr Governor of Lagos State” which was made pursuant to *S.58 of the Public Health Law of Lagos State. All in all, the duo Celebrities were found to have contravened the Provisions of S.58 of the Public Health Law of Lagos State and Regulation 8(1)(a) & (b) and 17(1)(i) of the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 S.58 of the Public Health Law of Lagos State expressly provides that: “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 (₦100, 000) or to any non custodian sentence and if a corporate body, to a fine of five hundred thousand Naira (₦500,000).

Secondly, Regulation 8 (1)(a) of the Infectious Disease (Emergency Prevention) Regulation 2020 which was the second law deemed to have been violated by the defendants expressly provides that: “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”.

At this point, it is important for every reader of this article to carefully note that by virtue of S.53 of the Public Health Law, the Governor of Lagos State lacks the power to make Regulations under the Public Health Law. This power is solely vested in the hands of the Commissioner of Health. What this translates into is that the Governor’s directive made pursuant to S.58 to fall under the auspices of ” any other Regulation” is illegal and unconstitutional as this is solely a power Constitutionally reserved for the commissioner of Health. Moreover, S.1(1) of the Regulations Approval Law, Chapter R4, Laws of Lagos State requires that the approval of the House of Assembly of Lagos State must be Sought before a Regulation becomes Operational. What this translates into is that the Infectious Disease (Emergency Prevention) Regulation 2020 which was issued by the Lagos State Governor cannot even take effect since it has not been approved by the Lagos State House of Assembly..directive was enforced thereby occasioning more illegality.

A cursory glance at S.58 of the Public Health Law of Lagos State (Cited above) provides for a monetary fine to be imposed on any one who violates the provisions of the Public Health Law alongside any other Regulation made under the Public Health Law of Lagos State. The directive of the Lagos State Governor (as regards a ban on the gathering of more than twenty persons) in this instant case was purported to have been made pursuant with this particular Section of the Public Health Law.

It would be apposite to bring it back to the mind of the reader of this article that the directive made by the Governor was a ban against gathering of persons exceeding twenty which was not covered by S.58 of the Public Health Law. Therefore, it would amount to an unconstitutional attempt to wrongly include the Governor’s ban against the gathering of twenty persons in the Public Health Law. The Section never mentioned such and so therefore would amount to an illegality to fabricate and include such. See S.36(12) of the Constitution of the Federal Republic of Nigeria which provides that No one shall be punished for an offence unless such an offence has been enacted in a written law and it’s punishment prescribed. This agrees with the Latin Maxim: Nullum Crimen nulla poena sine praevia lege poenali which means that No Crime is Committed and no Crime can be imposed without the Act having being prohibited and the punishment having being prescribed by a law enacted before the Act was committed. See the Case of Aoko .v. Fagbemi.

Nothing in the whole Gamut of the Public Health Law of Lagos State and the Infectious Disease (Emergency Prevention) Regulation 2020 makes the gatherings of twenty persons an offence. It therefore amounts to an illegality to convict the defendants based on a non-existing crime or offence. Moreover, since the two Laws relied upon did not expressly provide that the gathering of more than twenty persons amounts to a Crime, the directive of the Governor would amount to an advisory. See the case of Faith Okafor .v. Governor of Lagos & Another (2016) LPELR 41066CA where the court held that a Governor’s directive is only an advisory.

Finally, S.58 of the Public Health Law from which the defendants were sentenced expressly provided that a fine shall be imposed on a party who Contravenes any provision of the Public Health Law OR to any custodial sentence. What this provision translates to is that a party found guilty of any provision of the Public Health Law can only be asked to pay a fine OR have any other custodial sentence passed on such a Party. The fourteen days (14) Community service the Defendants were sentenced to qualifies as “any other custodial sentence”. It is therefore wrong for the Magistrate Court to have sentenced the defendants to both Sanctions where the provision expressly made use of “OR”. Thus, this writer strongly believes that a conscious shot at appeal would be favourable for the defendants. However, while the courts judgement subsists, it remains binding on the parties.