J.G. Unanaowo. Esq.
INTRODUCTION
I have taken time to closing study sections 2,4,5 and 8 of the Quarantine Act Cap Q2 LFN 2004, the executive order RVSG 01 2020, the Quarantine ( coronavirus and other infectious disease) regulations 2020 signed by the governor of rivers state, Mr Nyesom Wike on 19 March, 2020 and the directives of the governor for the total lock down of port harcourt and Obio/Akpor local government of rivers state.
In a bid to have a legal frame work to curtail the deadly coronavirus pandemic, the rivers state governor Mr Nyesom Wike pursuant to sections 2,4 and 8 of the Quarantine Act of 1926 signed the Quarantine ( coronavirus and other infectious diseases ) regulations 2020 and executive order RVSG 01 2020 on 19 march, 2020 declaring coronavirus to be a dangerous infectious disease and making regulations to curtail the deadly virus.
Section 5 of the Quarantine Act provides for the punishment of any person who contravenes any regulation made pursuant to section 4 of the Act. It provides thus:
“Any person who 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”
The implication of section 5 of the Quarantine Act is that, any person who defaults any regulation made by the president or governor of a state to curtail any disease declared to be an infectious disease is liable to a fine of N200 or a term of 6 months imprisonment or both. The Act did not impose on the president or governor any discretion to impose any other form of penalty on any person who defaults the regulation.
The governor arrogate to himself powers to issue punishment for any defaulter of the regulation he signed on 19 march, 2020
Paragraph 10 of the executive order RVSG 01 2020 signed by Mr Nyesom Wike on 19 march, 2020 provides thus:
” All council chairmen are to head task force in their respective local government area that will ensure that markets remain closed, council chairmen are further authorised to confiscate the goods of any defaulter of this order”
The governor has no right, power or privilege to direct any body to confiscate the goods of any person who defaults the executive order as penalty for their defaults because section 5 of the Act already made provision for punishment.
Therefore, the actions of the rivers state task force who are in the habit of confiscating goods or imposing a heavy fine on alleged defaulters are not within the bounds of the law and totally unacceptable.
The action of the governor is an abuse of power and not supported by law. In the case of A.G KEBBI STATE v JOKOLO & OR (2013) LPELR-22349 (CA) the court held “…executive powers of the governor of any state must be exercised in accordance with the law, an executive or administrative action that is not reasonably justifiable in a democratic society, be it in the interest of public safety, public morality or public health…the court shall intervene to curtail or nullify abuse of powers and authorities not supported by law. See governor of Lagos state v Ojukwu (1989) 3 NWLR ( pt 18) 621 Obeya memorial specialist hospital v A.G Federation & ors ( 1987) 3 NWLR ( pt 60) 325
Consequently, the order to confiscate goods of alleged defaulters not being within the bounds of the law is unlawful and can be challenged in court.
24 HOURS LOCK DOWN, A BREACH OF SECTION 41 CFRN
On Monday 4 may, 2020. Mr Nyesom Wike announced a 24 hours lock down in Port Harcourt and Obio/Akpor local government area of the state with effect from Monday 7 may 2020.
The directive or pronouncement of the governor is not backed by any law pursuant to the Quarantine Act. The question that comes to mind is does the governor reserved the power to restrict people’s movement by mere directive or pronouncement? Or does the directive or pronouncement of the governor amounts to law? This question was answered in the negative in the case of OKAFOR V LAGOS STATE GOVERNMENT & ANOR (2016) LPELR-41066 (CA) the court in this that case also held thus:
” under section 41(2) of the 1999 constitution (as amended) for any law or every direction by the respondent to merit justification, the restriction must be directed at any person who has committed or is reasonably suspected to have committed a criminal offence. Anything otherwise renders such a law or directive of the governor of Lagos state unconstitutional, unlawful and illegal and thus without any force of law…”
Freedom of movement is a fundamental right under section 41 of the 1999 constitution. It is a right that cannot be denied of anyone except as provided by law, not a regulation, directive or pronouncement of a governor.
Assuming but no conceding that the directive or pronouncement of the governor restricting movement is pursuant to the Quarantine Act, the restriction of movement in rivers state is still void in law because there is no law in place to served as exception under section 45 (1) of the 1999 constitution. It provides thus:
” 45 (1) Nothing in sections 37,38,40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society
a- in the interest of defence, public safety, public order, public morality or public health
b- …………………….
By sections 4 and 8 of the Quarantine Act the governor is empowered to make regulations to curtail the virus but if it becomes necessary to restrict the people’s right to freedom of movement then in accord with 45 of the Constitution there must be a law in place to back the actions of the government.
In the absence of no such law in place, the restriction of movement by the governor via a broadcast on Monday 4 may, 2020 with effect from Thursday 7 may, 2020 is unconstitutional, not permitted by law and can be challenged in court.
CALL TO AUCTION CONFISCATED VEHICLE OF ALLEGED DEFAULTERS IS UNLAWFUL
The directives given by Mr Wike to the attorney general of the state to auction vehicles of persons who default the lock down order is a terrible and irresponsible directive.
In the instant situation, the governor has no power to auction the vehicle of any person in default of the lock down order of the governor.
Assuming but not conceding that the 24 hours lock down is part of the executive order RVSG 01 2020 signed 19 March 2020 the punishment of any defaulter is provided under section 5 of the Quarantine Act which is a fine of N200 or 6 months imprisonment or both
It is wrong for the governor to call for auctioning, consequently, any person who makes the mistake of buying any of those confiscate vehicle equally buys litigation for himself. I strongly advise the attorney general who is a practising lawyer to advise the on the legal implications because if the matter goes to court, junior lawyers can make a nonsense of the attorney general in court.
ANY CONFISCATION OF PROPERTIES BY THE RIVERS STATE GOVERNMENT ON GROUNDS OF DEFAULT OF LOCK DOWN ORDER IS UNCONSTITUTIONAL
Among other things, Mr Wike has also directed the state task force to ” Confiscate and auction any hostel and guest houses operating in defiance of the ban”
The governor misdirected himself when he issued such directive. I like to reiterate that the penalty for any default of the regulation made by the governor pursuant to 4 and 8 of the Quarantine Act is provided under section 5 of the same Act. It will be unlawful and illegal for the government to confiscate and auction the property of any alleged defaulter of the lock down order.
There is no law anywhere that provides for the confiscation and auctioning of the property of a person who defaults an executive order or directive of a governor.
Under section 36 (12) of the Constitution the offences and penalty for any offence must be clearly stated in a written law. If defaulting an executive order is an offence, the governor should do well to provide the written law upon which he based his actions.
There law is that, no property shall be compulsorily acquired except in a manner prescribe by law and such acquisition must be for overriding public interest. Please see sections 44 of the Constitution, sections 28 and 29 of the Land use Act 1978 and the cases of DUMEZ NIGERIA PLC v ADEMOYE & ORS (2014) LPELR-23518 (CA), AKERE v GOVERNOR OF OYO STATE & ORS (2002) LPELR- 12291 (CA) for a detailed analysis of this point
Thus, it will be unconstitutional and an abuse of power for the governor to confiscate and auction any property of a person who defaults the executive order. If the governor wants to acquire any property, it must be for overriding public purpose under section 28 of the land use Act or if the governor wants to revoked any statutory right of occupancy, it must be on the grounds under section 28 (5) of the same Act.
Consequently, since, the reason for the confiscation and auctioning of any property of an alleged defaulter is not backed by law, same is unlawful and can be challenged in court, a buyer of such property will equally be buying litigation for himself.
Please, note, I am not against any preventive measures to fight against the virus but I am of the view that the governor should be properly guided with the law to avoid infringing on people’s right and buying litigation for the government.
J.G. Unanaowo. Esq., josephunanaowo@gmail.com
