Why the Conviction of Funke Akindele Cannot Stand in Law: The Contradictions of Inibehe Effiong’s Brilliant Opinion – Olumide Babalola

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Love him or hate him, Ini (as I fondly call him) Effiong has deservedly earned his place as one of the few consistent defenders of human rights in Nigeria today. Ever since our country got hit with the COVID-19 pandemic, he has consistently analyzed the various combative moves of the government vis a vis their legal effect and propriety. Many (including eminent lawyers) have however argued that, all legal pontificates, even on the rule of law, should be jettisoned at this time on the altar of public health and “doctrine of necessity” (which I am yet to find in any appellate case law or Nigerian statute books (I am open to learning here though).

That being said, it is no longer news that Funke Akindele Bello and her husband were charged, convicted and sentenced yesterday for violating the Lagos State Governor’s “social distancing directive” pursuant to the Public Health Law of Lagos State and regulation made thereunder sometime last week.

In a remarkable speed of light, while others (including myself) were analyzing the moral side of the story, Ini went to town with an unprecedented, quite comprehensive and lucid analysis of the legal issues surrounding the prosecution and the verdict. I have read his fantastic opinion several times but I found a couple of contradictory portions which require further interrogation as follows:

First, in what appears to be his most potent ground for setting aside the conviction, he submitted that the offence is unknown to law, yet he went ahead to say that the Federal Government’s COVID-19 Regulation has covered the field thereby suggesting that, the offence exists under FG’s regulation. Although, I do not agree that such offence as “Gathering of over 20 persons” exists, but Ini’s concession to covering the field might have cancel out his first issue that the offence is unknown to law.

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The follow-up submission to the above, may be found in the Supreme Court’s decision in Okpa v State (2017) LPELR -42205 (SC) that:

” It is in the application of the foregoing clear and unambiguous adjectival provisions that this Court has, in a plethora of its decisions, maintained that it does not matter under which section of the law, the definition or the penal section, an appellant is convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. (Emphasis mine)

Hence, it can then be conversely argued using Ini’s submission that, although the offence does not exist under Lagos laws, its covering by the FG’s regulation (a subsidiary legislation) makes it known to law.

Secondly, on the excessiveness sentencing, Ini also appears to have submitted that it was not a legal flaw when he started with “Apart from the legal flaws.” Notwithstanding that anyway, the question that follows this would seem – In the event of excessive sentencing, what will an appellate court do?

Although, in the event of an appeal, parties would proceed to the High Court, the Supreme Court’s decision in Onyejekwe v State (1992) LPELR – 2731 (SC) is instructive that:

“Further, in exercise of its powers under Section 16 of the Court of Appeal Act,1976 and Section 22 of the Supreme Court Act, the Court of Appeal and the Supreme Court respectively can enter the correct conviction or sentence as the case may be, without sending the case back to the trial court for the record to be corrected.”

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From the guidance of the apex court above, it seems clear that, even where the appellate court finds the sentencing excessive, they may simply correct the sentencing without necessarily touching the conviction. See also the decisions in Adeyeye v State (1968) LPELR – 25500 (SC) and Omokuwajo v Federal Republic of Nigeria (2018) LPELR 20184 (SC) where the apex court had consistently ruled that only such sentencing would be reviewed (but not necessarily to set aside the conviction).

Conclusively, I agree with Mr. Effiong that, a written regulation on social distancing needs to be issued not only to effectively tackle the spread of COVID-19 but to also give legal backing to any actions taken on the strength of the Governor’s directive especially as it affects citizen’s fundamental rights which ought to be sacred even in times of pandemic.

Olumide writes from Lagos State, Nigeria.
olumide@oblp.org

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