I disagree with the brilliant and respected Effiong as well as other writers on few of the legal issues raised in their recent article on the validity of Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020. In particular, no doubt, Mr Effiong is a very brilliant lawyer. I respect him and I will continue to respect him irrespective of his wrong legal opinions on some issues in article to the above topic.
1. Is Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 valid under the Law?
Yes, it’s a valid law. Section 8 of the Quarantine Act gives the power to Governor of a state to so make the Regulation where the President hasn’t exercised or failed to exercise his power under section 4 of the Quarantine Act. The provision of section 8 of the Quarantine Act provides as follows:
“If and to the extent that any declaration under section 2 or 3 or this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof fully as such power may be exercised by the President, and subject to the same conditions and limitations”
On the 27th of March, 2020, Governor Sanwo-Olu exercised this power pursuant to Quarantine Act and Public Health Law of Lagos State. It is trite law that where the contents and words of the constitution are clear, plain and unambiguous, the literal rule of interpretation should be applicable, as it was held in OKUNGBOWA V.GOV., EDO STATE (2015)10 NWLR (PT. 1467) 365 C.A, MUHAMMED ABACHA V FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PT 1402) 43 S.C. The court holding is not different in cases of EVEMILI V. STATE (2014) 17 NWLR (PT. 1437) 421 C.A ANS DAPIANLONG V. DARIYE (2007) 8 NWLR (PT 1036). By extension, it means that the natural, grammatical and ordinary meaning of the words used in the statute should be ascribed to them was as also held in OGAGA V. UMUKORO (2011)18 NWLR (PT 1279) 924 that;
NO MATTER HOW, NO OTHER SECONDARY MEANINGS OF THE CLEAR WORDS used in the constitution or any other statute, be ascribed to them.
It is no more in dispute on whether or not the Governor can make a Regulation pursuant to the Quarantine Act based on the above principle of law and the clear provision of section 8 of the Quarantine Act.
Few days after the Governor of Lagos State exercised the conditional power under section 8 of the Act, the President of the Federal Republic of Nigeria, subsequently made a Regulation pursuant to the powers conferred upon him by the Quarantine Act in its section 4.
Now, the Regulation made by the President is still valid. However, people are still criticizing the power of the Governor to so make Regulation on QUARANTINE because same is expressly under the Exclusive Legislative List, but I will not want to go into this argument (It is another point on its own). It is assumed and concluded that the Governor has the power to make the regulation regardless of the fact that Quarantine is an Item in the Exclusive List, because the power is donated by a valid law and its section and the same law or its section HAS NOT BEEN DECLARED VOID by a court, it is still valid. In fact, very valid. It is for the Court to declare Inconsistency in two Laws and for any other person.
It has also been argued that by the Constitutional Principle of Covering the Field, the Regulation made by the Governor is valid but not in operation because there is a federal regulation on it already. Now, the question is that:
Does the principle of covering the field applicable strictly to the laws made by the Federal and State Legislative Arms or Regulations made by the President and the Governor respectively?
The answer to this question is provided by the Supreme Court in AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2017) LPELR-43713(SC), but it is needless to go into this argument as same is even premature.
Assuming without conceding However, that the Doctrine also applies to Regulation made by the President and the Governor of Lagos State, the Regulation made by Governor Sanwo-Olu is still going to be valid but inoperative with respect to Quarantine Act, and not that it does not going to have operative effect with respect to the Public Health Law of Lagos State. For the purpose of clarity and the understanding of non-lawyers, the principle of covering the field means that whenever both the National Assembly and the State House of Assembly purport to make laws on any common item or matter in the concurrent Legislative List two situations may arise thus;
– I. If the Law enacted by the House of Assembly of a State is inconsistent with the Law validly enacted by the National Assembly, the law made by the National Assembly shall prevail, and the Law made by the House of Assembly shall, to the extent of inconsistency, be void. Section 4(5) of the Constitution is emphatic on this; and
II. Where the Laws made by both the National Assembly and the House of Assembly of a State with regard to the same issue or matter in the Concurrent Legislative List are not inconsistent, the Law made by the National Assembly enjoys superiority or paramountcy over the Law enacted on the subject by the House of Assembly of the State.
Similarly, the decision of this Supreme Court in A. G, ABIA v. A. G, FEDERATION (2002) 6 NWLR (Pt. 763) 264 at 435 F puts it succinctly thus – the doctrine (of covering the field) however renders the paramount legislation predominant and the subordinate legislation remains inoperative so long as the paramount legislation remains operative. Where, of course, there is obvious inconsistency, the subordinate legislation is void.”
ARGUMENTS AND POSITION OF LAW ON THE VALIDITY AND OPERATION OF THE LAGOS STATE INFECTIOUS DISEASE (EMERGENCY PREVENTION) REGULATION 2020
The validity of the Regulation with reference to the Public Health Law of Lagos State was questioned by the critics on the grounds that:
A. The Public Health Law of Lagos State states that the Regulation must be made by the Commissioner for Health, not the Governor.
B. That the Regulation Approval Law of the State wasn’t followed, as far as the approval of the State House of Assembly is concerned. This point of theirs, deals more with the operation of the law, not the validity.
MY OPINION.
Yes, the law states the Commissioner. However, the interpretation section of the Law defines Commissioner to mean, the Commissioner for Health or any other member of the State Executive Council.
Section 69 of the Law(Interpretation section) defines a Commissioner as follows:
“commissioner for health or any member of the State Executive Council for the time being charged with the responsibility for public health”.
Now, the question that’s begging for an answer is whether or not the Governor is not member of the State Executive Council? Who is even the head of the Council? It’s my opinion here that perhaps, the critics failed to consider the Interpretation section of the Law. The interpretation section being part of the legislation is not a joke. It has its purpose. It’s my submission on this ground that the Governor validly exercised the power under section 43 of the Public Health Law of Lagos State.
The above drives us to the second point that the Regulations Approval Law of Lagos State (section 2) states that any Regulation made by the Ministry or Government parastatals cannot validly be in operation except it’s approved by the State House of Assembly. When I took my time to go through the Interpretation section of this same Regulations Approval Law, the office of the Governor is not mentioned. In fact, it was excluded. The law is of course clear on the principle that express mention of a thing is to the exclusion of others. It is my point further that Interpretation section is part of legislation. In fact, it must be checked before resulting to any other instrument for the interpretation of any word in the same statute. I submit that any Regulation from the office of the Governor is exempted under the Regulation Approval Law of the State.
I know the critics might want to argue that the word ‘includes’ is used. Yes. I further submit on the principle of law that express mention of a thing is to the exclusion of other.
Having examined the above, it is now apt to discuss about A.G. LAGOS V. FUNKE AKINDELE. It has been argued that defendants were charged for an unknown offence because of the fact that the charge read to the defendant conveyed a different law and offence apart from what regulation 8 provides for.
However, we should not forget that mis-description of the law or offence under which a charge is being bought, does not necessarily render the offence charged not known to law at the time of its commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done the information is valid and is merely defective if there is any mis-description of the law under which the charge laid- OGBOMOR v. STATE (1985) 1 NWLR (Pt. 2) 223 at 233.
It is submitted that the argument of the critics is not absolute on this point as there are two ways to it.
On the issue of punishment inflicted by the Magistrate, they have argued that the Magistrate lacks the power to impose double punishment on the defendants because of the use of “OR” in the provision of section 58 of the Public Health Law of Lagos State. Section 58 of the Law provides as follows:
“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 (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).”
In applying the above provision, the Magistrate sentenced Funke Akindele and her husband to 14 days community service each, to start from 9.00am to 12 noon each day during which they are to sensitize the public on the COVID-19 pandemic in ten major areas of the state. They are also to pay a fine of N100, 000 each after which they would observe the period for isolation.
I submit that the Magistrate was right. The “OR” can also be interpreted as “AND” which is conjunctive depending on the context with which same is used. It is submitted that it is within the discretion of the court to so interpret “OR”. It is not within the prerogative of any writer to affirmatively conclude that OR MEANS DISJUNCTIVE THERE. NO!
CONCLUSION
1. It is concluded that the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 made by the Governor pursuant to the Public Health Law of Lagos State is valid and operational having complied with the provision of the Public Health Law of Lagos State and having been excluded by the Regulations Approval Law of Lagos State because the office of the Governor is not included in the interpretation section of the Regulations Approval Law of Lagos State.
2. It is concluded that the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 made by the Governor pursuant to the Quarantine Act is still valid because it was made before the President exercised its power. The argument that Quarantine is in the Exclusive List cannot make the provision of section 8 of the Quarantine Act and section 43 of the Public Health Law of Lagos State void by words of mouth and It is only the court that can declare the provisions of the two laws as void because the laws are still very valid till date. (This argument of theirs is still subject to the definition of “Quarantine” whether it will be narrowed or expanded).
3. It is also submitted that Funke Akindele and her husband’s trials as well as sentencing are valid and within the ambit of the law based on the reasoning above.
MY ADVICE.
I have gone through the Regulations made by both the President and Governor Sanwolu. Both Regulations were badly drafted. In fact, the Regulations lack any flavour of good legislative drafting. It is suggested that Supplementary Regulations be made to cater and define the offences clearly and expressly. In the absence of any amendments or making of Supplementary Regulation, the court will always be confronted with the problem of interpretation as regards creation and definition of offences.
Morakinyo Olasupo is a Lagos-based Legal Practitioner. He can be reached via, facebook: Morakinyo Olasupo with phone number +2348162239050 and email: [email protected]
