A great point to start would be to cautiously quote the Supreme Court in The Military Governor of Lagos State & Ors. v. Ojukwu & anor. (1986) 2 NWLR (pt 18), so as to prevent the timeless words of the Law Lords from losing its sagely flavour. “The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion.”
Two sets of regulations have been released by The Governor of Lagos State and The President of the Federal Republic of Nigeria, aimed at combating the Covid-19 pandemic. Reactions have trailed these regulations; some rightly so, some were utterly misplaced.
The Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 (“the regulation”) was made by the Governor of Lagos State on the 27th day of March 2020, to borrow Mr. Governor’s words, in the plenitude of powers conferred (allegedly) on him in that regard by Lagos State Public Health Law, Quarantine Act and other enabling laws. The regulation was made by the Governor to curtail the spike increase in the number of persons infected by the COVID-19 virus within the state.
THE POWER OF THE GOVERNOR TO MAKE A REGULATION UNDER THE PUBLIC HEALTH LAW OF LAGOS STATE
The) regulation also derives its validity from the Public Health Law of Lagos state. The Public Health Law 2015 in section 43 and 53 empowers the Commissioner to make regulations under the law and as regards issues pertaining to the law. It must be stated at this juncture, that the power of the Governor of Lagos state to make such regulation as he has done under the Public Health Law of Lagos State is extremely limited and close to nonexistent and ultra vires.
In Ekanem & Ors v Obu (2010) LPELR-SC. 47/1995, the Court held that “an ultra vires act is invalid since it has been done in excess of authority conferred by law, in excess of powers.” Since the law has delegated the duty of making such regulation on the Commissioner for Health, it is out of place for the Governor, to assume such duty. Nnaemeka-Agu J.S.C. in Co-operative Bank Nig. Ltd. v Anambra State (1992) 8 NWLR (Pt 261) 528 at 556, stated that “it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method and no other, must have to be adopted.” In Simeon v. College of Education Ekiadolor Benin (2014) LPELR-CA/B/103/2006, the court held that the legal maxim delegates non potest delegare is often invoked in constitutional or administrative law to declare invalid the exercise of power or the discharge of functions by persons other than those to whom the powers or functions have been entrusted.
The Interpretation of the word commissioner to include “The Governor” has been a point of debate. The Interpretation section of this law defines a commissioner to be the “commissioner for health or any member of the State Executive Council for the time being charged with the responsibility for public health”. The argument for those who interpret the meaning of a commissioner to include the Governor is based on the principle of Agency, saying that the Commissioner by virtue of his office acts on behalf of the Governor. That the act of agent is in law the act of the principal, and whatever is required to be done by an agent can be done by the Principal himself.
Also, in the event that the agency argument above does not fly, they are also of the opinion that, as it relates to the COVID-19 Pandemic being a public health challenge, the Governor of Lagos state has been serving as the incident commander and as such can fall within the meaning of “any member of the State Executive Council for the time being charged with the responsibility for public health”.
While those against the interpretation above, are relying on the literal interpretation of the law and the principle of expressio unius est exclusio alterius, to hold that a Governor does not come within the interpretation of who a Commissioner is.
However, it is opined that another member of the executive council would only be able to act in the stead of the Commissioner where the Commissioner for health is unavailable as a result of ill health, incapacitation, death or vacancy. In explaining the meaning and implication of the use of “or” in a statute, the Court in Ndoma-Egba V Chukwuogor & ors (2004) LPELR- 1974 (SC) held thus: “In ordinary usage, the word ‘or’ is disjunctive and ‘and’ is conjunctive. But it is conceded that there are situations which would make it necessary to read ‘and’ in place of ‘or’ and vice versa. This may occur in order to carry out the intention of the legislature.” It is submitted that the statement “or any member of the State Executive Council…” used in section 69 of the Public Health Law is to prevent a power vacuum in the event where the Commissioner for Health is unavailable and it doesn’t connote that any other member of the State Executive Council can undertake that responsibility while there is a Commissioner for Health in office.
THE REGULATION APPROVAL LAW OF LAGOS STATE 2015 VIS A VIS THE REGULATION
Assuming that the Governor has such power to make the regulation pursuant to the Public Health Law of Lagos State, the regulation shall still have no effect by the provisions of section 1 of the Regulation Approval Law of Lagos state, unless it is laid before and approved in accordance to the resolution of the House of Assembly as prescribed by the Constitution.
From the combined reading of sections 1 of Regulation Approval Law of Lagos State and sections 96 and 98 of the 1999 Constitution of the Federal republic of Nigeria, a proposed regulation in Lagos State must be laid before the Lagos State House of Assembly at a session where one-third of all the member must be present and the issue of whether approval should be granted or not shall be determined by the required majority (simple majority) of the members present and voting.
The regulation issued by the Governor of Lagos State did not undergo this aforementioned process, and it cannot be claimed that the Governor even with the backing of the machinery of the State acted in ignorance of the law. In Idris v A.N.P.P (2008) 8 NWLR (pt. 1088) 1 at 151, the court stated that “the maxim ‘ignorantia juris quod quisque tenetur scire neminem excusat’ means ignorance of law excuses no man and, indeed furnishes no ground in law or equity.”
THE REGULATION, QUARANTINE ACT AND THE DOCTRINE OF COVERING THE FIELD: A HANDICAP WRESTLING MATCH
Regarding the regulation being made pursuant to the Quarantine Act, section 8 of the Act empowers the Governor to make regulations where the President has not done so. However, the President made regulations pursuant to section 3 and 4 of the Quarantine Act affecting Lagos State among others, a few days after the Governor has made regulations pursuant to section 8. Questions should be asked of the status of the Governor’s regulation now that the President has issued his. It is firmly believed that the Doctrine of Covering the field as espoused in the A.G. of Federation v A.G. of Lagos State (2013) LPELR-SC.340/2010 and INEC v Alhaji Abdulkadir Balarabe Musa (2003) 3 NWR (Pt. 806) 72.
By the subsequent making of same regulation by the President, the regulation made by the Governor falls in abeyance and becomes inoperative as long as the President’s regulation is still in operation. This position has obtained credence in plethora of cases such as AG Lagos State V Eko Hotels Ltd (2017) LPELR-43713(SC), AG Ogun State V Ag Federation (1982) 1-2 SC, AG Federation V A.G Lagos State (2013) 16 NWLR (Pt.1380) Pg 249 SC.
It could be raised that this doctrine applies only to the process of law making and not regulations. It is apposite to state that the making of regulation itself is tantamount to law making. Section 37 of Interpretation Act recognizes regulations as a subsidiary instrument. Section 18 of Interpretation Act defines law to mean any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a law.
ATTORNEY GENERAL OF LAGOS STATE V FUNKE AKINDELE AND ANOR (UNREORTED MIK/A/43/2020
On the 6th of April 2020 ,the Public went agog and in fact induced the State’s complaint against a well known celebrity, Mrs.Funke Akindele Bello and her husband Mr. Abdul Rasheed Bello for organizing an house party in deviance to the regulation made by the Governor. The Defendants were charged before a magistrate court in Lagos under Regulation 8(1)(a) & (b) and 17(1)(I) of the Lagos State Infectious Disease Regulation 2020 and Section 8 of the Public Health Law of Lagos State Law 2015. By the wordings of the Charge Sheet that has been in circulation, the defendants were charged for gathering with over twenty persons contrary to Reg. 8 and 17(1) of the Infectious disease Regulation and Punishable under Section 58 of the Public Health Law of Lagos State.
They were never charged further to the Quarantine Act and the Public health law does not provide for the offence of gathering with more twenty persons. Both the Quarantine act and the Public Health Law of Lagos have limited offences to the contravention of the regulations made by the Governor, and we have established that the Regulation has lost the ability to operate in the face of the Doctrine of covering the field and for non-compliance with the provisions in Section 1 of the Regulation approval of Lagos State, and non compliance with sections 43 and 53 of the Lagos State Public Health law. It is safe to posit that a law that is not operational, can be adjudged unknown to law for the time being. Therefore, the constitutionally guaranteed right of the defendants under section 36 (12) that an accused can only be charged for an offence known to law has been contravened. The cases of Olabode Geroge v FRN (2014) 5 Nwlr (pt.1399)1, Aoko v Fagbemi (1961) 1 All NLR 400, and AGF v Dr. Clement Isong (1986) 1 QLRN 75. are well instructive in this area.
It has been argued citing the case of Okpa v State (2017) LPELR-42205 (SC) that where a law where an accused has been convicted under a wrong law, once the fact can show that the offence exists in another written law, the appellate court will not interfere with the conviction. It is submitted on this issue, that this is inapplicable still to this issue; as the Governor has not by a valid instrument restricted or prohibited gathering of persons which includes private events, religious services, conferences etc. Neither did the Covid-19 Regulations, 2020 nor Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 provide for the prohibition of the gathering of over 20 persons, as claimed on the charge sheet, as such it still remains an offence unknown to law in Nigeria to do so.
There also exists the talk of Social distance directive made pursuant to regulation 8(10(a) & (b) of the regulation. Having argued on the invalidity of the regulation to borrow the words of Lord Denning in Macfoy v U.A.C (1962) AC 158 that “it is trite law that you cannot build something on nothing as the whole edifice will collapse.” It is further submitted that such directives should be by a regulation instead and duly laid before the House of Assembly, and gazette upon approval.
The recent legal flip-flopping by the Governor shines the bright spotlight on the Ministry of Justice headed by the Honourable Attorney General and Commissioner for Justice. The temptation to criticise the quality of legal advice afforded to Mr. Governor by the occupants of Block 2, The Secretariat, Alausa is to be resisted as they need all extrinsic guidance and correction they can get during this period.
The situation also calls for further harmonisation and synergy between the Federal Ministry of Justice and the Lagos State Ministry of Justice, to avoid further conflict of regulation or laws in the future.
In view of the above, it is submitted that the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 is not an active regulation in Lagos State as of this time and moment, and as such any arrest, detention, arraignment, trial and conviction predicated on it would be unfounded in law.
Akintola Phillips – Counsel at Hermon Legal Practitioners, Lagos.
Muhammed Daud – Associate at Adeniji Kazeem & Co, Lagos