By Achinike G. William-Wobodo
Rivers State woke up this week to gross abuse of power and misconduct by the Governor of the State, Chief (Barr) Ezenwo Nyesom Wike, who arbitrarily and dictatorially demolished two hotels in Eleme Local Government Area of the State upon an allegation that the hoteliers violated the Regulation (Executive Order RSVG 06, 2020) made by the Governor on Prevention of Covid-19 in the State. The actions of the Governor attracted a lot of outrage from the larger Nigerian community including senior members of the Nigerian Bar Association. Following the sequence of events, most sane and civilised minds had expected the Governor to show remorse and apologise to the State for the trauma, he failed to do so. Rather, in his usual mannerism, he unashamedly unleashed a bandwagon of persons who threw their integrity to the drains in an attempt justify undefendable.
After I read a rejoinder from the Honourable Attorney of Rivers State (HAG) who is a Professor of Law, Prof. Zacchaeus Adangor on his audacious attempt to justify a gross abuse of power and misconduct, an arbitrary, brash and unconstitutional violation of citizens constitutional rights by the Governor of Rivers State under the guise of enforcing lockdown Regulation in Rivers State, I came to the irresistible conclusion that Rivers State is indeed under a dictatorship and reign of terror. The Professor of Law was actually Governor Ezenwo Nyesom Wike’s former Law Teacher. Beyond his duty as the Attorney General and Chief Law Officer of the State he was also under a moral burden to guide the Govenor as to what was right or wrong in the eyes of the law. If as HAG and Governor Wike’s former teacher, he puts up this kind of defense rather than a diplomatic apology, then a lot is left to be desired about the state of affairs in Rivers State. It is for this singular reason that I want to debunk some of the grandstanding in the legal agreement proffered by the Honourable Attorney General of Rivers State.
Make no mistakes, I have always advocated throughout this pandemic that the Governor of a State has powers, albeit it conditional, to make Regulations for the containment of the spread of infectious diseases, including the present Covid-19 disease; and I do not intend by any means to hide my endorsement of the lockdown in Rivers State. Therefore, I will say without any form of hesitation that I totally agree that a Regulation made by a Governor pursuant to the Quarantine Act is not in the same category as the “directive” issued to restrain movements during a monthly sanitation exercise and is therefore outside the contemplation of decision of the Court of Appeal in the case OKAFOR v. GOVERNMENT OF LAGOS STATE (2016) LPELR-41066 (CA) 404 as wrongly argued by many. The difference is that the “directive” made by the Lagos State Governor during such Sanitation Exercise is not made pursuant to any delegated power of legislation. The Regulation made by a Governor under the Quarantine Act 1926 is based on delegated legislative powers generously, lawfully but conditionally donated to a Governor by the National Assembly of the Federation, and thus has the force of law. See: AMUSA V. STATE (2003) LPELR-474(SC) (Pp.11-12, paras. C-A); ACTION ALLIANCE & ORS V. INEC (2019) LPELR-49364(CA) (Pp. 36-37, paras. C-E)
Having said that, it becomes pertinent to address some of the arguments made by the Attorney General of Rivers State, commencing with the very undisputed positions of the law. As if to suppress or obliterate the apparent lawlessness and arbitrariness of the actions of the Governor, the HAG, in what was supposed to be a simple response to the free speech by Ebun-Olu Adegboruwa, Esq., SAN, over-flogged same with judicial authorities. I shall endeavour to match this with legal authorities too. Before proceeding further, it is important to state some relevant facts. The Governor of Rivers State issued Regulation for the prevention of the spread of an infectious disease (Covid-19) in Rivers State; the Regulation perhaps contains (rightly or wrongly) a clause that any hotelier who violates the Regulation would have his property demolished; the Governor found two offenders in Eleme LGA of Rivers State; the day following alleged violation of the Regulation, the Governor went to the hotels and demolished them. This brief statement of facts is taken “as is” from the account of the Governor for the purpose of this argument.
Curiously, the Professor of Law and Attorney General of Rivers State says the actions of the Governor were not arbitrary or lawless, indeed they were noble acts. In pursuing that argument, the HAG totally overlooked the inalienable constitutional right of the alleged offenders to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It is a cardinal principle of our constitutional democracy that no person should be convicted without been heard. I am certain that the HAG, as the Chief Law Officer of Rivers State, is aware of the Supreme Court decision in KAZA V. STATE (2008) LPELR-1683(SC) (P. 66, paras. E-F) that “an accused person cannot, in principle, be convicted without being heard. And what is more, a hearing must be before a judicially recognized adjudicatory body; not a collective body of local persons out to do jungle justice; a kangaroo Court.”
Might the Professor have forgotten that he thought Governor Wike and my humble self that the Constitutional Right to Fair Hearing also capsulates the two fundamental pillars of Natural Justice which supports the Rule of Law. The pillars which are indispensable part in the administration of criminal justice in any civilized society. They are: Audi Alteram Partem (hear the other side i.e. one must be heard in his own defence before being condemned) and Nemo Judex in Causa Sua (no one may be a judge in his own cause). In this case, the Governor made the Regulations as the lawmaker, the Governor as the police busted and investigated the crime, he was the prosecutor of the offenders, and sitting as the judge of first instance he found them guilty, sat on appeal over them and affirmed their guilt, and then he enforced his own judgement by demolishing their properties. What a lawful administration of criminal justice by a nobleman. See: BOGOBIRI V. STATE (2013) LPELR-20170(CA) (Pp.44-45, paras. E-C).
If the conduct of the Governor was not a misconduct, if his actions were not unconstitutional, arbitrary, illegal then it is either Mr Professor did not teach us aright or there are intervening circumstances that have made the Professor to see the law differently nowadays. I opt to believe that he thought us aright, because even the Supreme Court confirms these cardinal principles of law in ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) (Pp. 19-20, paras. A-F). The concept of fair hearing encompasses not only the principle of natural justice in the narrow sense referred to above, but in the wider sense of what is right and fair to all concerned and is seen to be so by every reasonable man.
It is objectionable to wrongfully associate the legitimate actions of an Attorney General with illegality, but much more objectionable and dishonourable for any law officer of the state (worse of all an Attorney General) to misinform or misguide citizens on the state of the law simply because he wants to coverup or mitigate the gross misconduct of his benefactor. The Attorney General of Rivers State made so much efforts in painting a picture of incitement against Ebun-Olu Adegboruwa, Esq., SAN, following the gentleman’s comments on the recent misconducts of the Governor, who is not only a lawyer but also a member of the revered Body of Benchers of Nigeria. Have no doubts at all that by the antecedents of the Governor and Government of Rivers State, in weeks to come you will read about petitions of incitement against that gentleman for expressing his displeasure on the misconducts of the Governor and perhaps of his harassment whenever he gets to Port Harcourt in future. Unfortunately, whilst the HAG was busy amplifying on the law of incitement, he failed to also highlight on the very dangers of “juggle justice” and “self help” which the Governor has now introduced and endorsed in the Rivers State. The HAG did not for a second ponder about what would have happened on that day had the owners of those hotels and the communities resisted the Governor, perhaps the community would have posed real threat to the Governor and in his defence the security personnel would have killed some persons. There would have been, most probably, a breach of the peace, the magnitude of which no one may conjecture.
Self-help is a primitive remedy capable of causing a breach of the peace in society [AGBAI & ORS V. OKOGBUE (1991) LPELR-225(SC) (P. 30, paras. C-D)]. The HAG is well informed about the decision of the Supreme Court in the case of MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & ANOR (1986) LPELR-3186(SC), which deprecated in the strongest of terms the actions of the Military Governors of Lagos State for self-help. The Attorney General is not bordered that stronger citizens, relying on the precedent set by the Governor, would take laws into the hands against weaker citizens, rather he is more concerned with laundering the image of the Governor and passing subtle threats to the Learned Senior Advocate of Nigeria. The Governor and his team must grow beyond their known antics of using threats and trumped up charges to gag citizens.
The Attorney General claimed that he was rather directed to take “appropriate steps” to auction the impounded vehicles. I do not intend to make any issue out of this flip-flop, save to say that I now expect that the Attorney General would follow the due process in carrying out the said directive, and that will include obtaining the fiat of the Attorney General of the Federation to prosecute the offenders, arraigning the persons before the appropriate court, and having them convicted in accordance with the law.
It will be uncharitable and unpatriotic to conclude this rejoinder without making a few comments on some of the arguable points raised by the Attorney General. The HAG appears to have proceeded on a very wrongful presumption that the powers of the Governor to make Regulation under sections 2, 4 and 8 of the Quarantine Act also entitles Governor Wike to amend and expand the punishment section of the Quarantine Act through an executive fiat. Section 5 of the Quarantine Act which creates the punishment is positive and conclusive. It provides that: “Any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or imprisonment for a term of six months or to both.” The penalty for contravening any Regulation, whether made by the President, Governor Wike or any other Governor shall be a fine of N200 or imprisonment or both. I do not see from the Quarantine Act where and how Governor Wike derived the powers to create the offense of demolition and auction of properties in his Regulation. By so do doing the Governor has usurped the powers of the National Assembly to amend the Quarantine Act. I need not also remind the Attorney General that in GOVERNOR OF OYO STATE & ORS V. FOLAYAN (1995) LPELR-3179(SC) (P. 59, paras. C-F); NYESOM WIKE vs. DAKUKU PETERSIDE & ORS (2016) LPELR-40036(SC) the Supreme Court made the point that any subsidiary legislation or Instrument that is inconsistent with the substantive legislation, is to the extent of the inconsistency void.
The Attorney General also alluded to the fact that the Magistrate could make an order of forfeiture against any vehicle impounded by the Government of Rivers State pursuant to the Regulation. Not being oblivious of the general powers of a Magistrate, I am yet to find any provision in the Quarantine Act that possibly empowers a Magistrates to go beyond the scope of that Act and to dispossess a citizen of his property rights. Further to this point and out of curiosity, may I even ask if the Attorney General of Rivers State or anyone acting on his behalf has the legal powers to even initiate and prosecute offenses under any Regulation made punishable by section 5 of the Quarantine Act without the express delegation of the Attorney Generation of the Federation? The offence committed contrary to section 5 of the Quarantine Act is a federal offence [Section 286(3) of the Constitution of the Federal Republic of Nigeria], which only the Attorney General of the Federation or any person acting on his behalf has powers to prosecute. The Attorney General of Rivers State must first demonstrate that he has the express authority of the Attorney General of the Federation to initiate and prosecute offenses arising from the Quarantine Act and the Regulations made thereto, otherwise any prosecution by the HAG is a nullity. See: ANYEBE vs. THE STATE (1986) LPELR-520(SC) (P.7, paras. A-C). This is likely to further expose Rivers State Government to series of litigations for violation of human right and unlawful prosecution. OKAFOR v. GOVERNMENT OF LAGOS STATE (2016) LPELR-41066 (CA)
In conclusion, I appeal to Rivers people not to emulate the illegalities and self-help of the Governor. The arbitrary and dictatorial actions and misconducts of the Governor by demolishing those hotels were barbaric and primitive, which should never be condoned in a democracy, and particularly so in a constitutional democracy. The Governor and his team have demonstrated that apart from lockdown, they have no other strategy or action plan to mitigate the impart of the Covid-19 disease on the State. I therefore urge Rivers people to remain vigilant, responsible to themselves and towards other citizens throughout this pandemic. I also encourage residents of Rivers State not to resort to self-help or civil disobedience at this critical time, no matter the degree of provocation from the Governor. The Court will continue to be the last hope of the common man. With God on our side, we shall overcome the pandemic and everyone whose legal right has been violated will definitely enforce same.
The Dignity of Rivers State will be Restored Again.
Achinike G. William-Wobodo is a Lawyer and Public Policy Analyst from Port Harcourt, Rivers State.