My attention has been drawn to the above mentioned online publication of 9th May, 2020 credited to Ebun-Olu Adegboruwa, Esq., SAN, wherein the author accused His Excellency, Nyesom Ezenwo Wike, CON, GSSRS, Governor of Rivers State of alleged acts of lawlessness and arbitrariness including alleged arbitrary arrest of two Pilots and oil workers and threatened auction of vehicles impounded from defaulters under Executive Order RSVG 06, 2020 which prohibits human and vehicular movements in Port Harcourt City Local Government and Obio/Akpor Local Government Areas until further notice.

The main thrust of Adegboruwa’s criticism is that the right to property is guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the Governor cannot confiscate the property of any citizen by executive fiat. In order to drive home his point, the learned Senior Advocate of Nigeria in rather very grim terms, called upon “the good people of Rivers State to stand up to every form of lawlessness and arbitrariness and defend their rights under the Constitution.” (Italics supplied for emphasis).

First, it is clear that the italicized portion of the publication constitutes an unmitigated act of incitement of the good people of Rivers State by the learned author and deserves condemnation by all well-meaning Nigerians. To be sure, the incitement derives from the overt appeal made by the author to the good people of Rivers State to “stand up to every form of lawlessness and arbitrariness . . .”

The phrase “stand up to” is defined in the Oxford English Dictionary (2006) at page 739 to mean “1. resist someone in a spirited way . . .”  A spirited resistance by a people against a democratically elected and duly inaugurated government may invariably involve some level of violence because “resistance” as a process involves far more than mere criticism, opposition or condemnation. It is the physical act of fighting against a group, political organization or authority.

Thus, an “incitement” in law means “an act of making someone to feel brave or confident enough to do something by giving active approval in support of the act or crime in question. Incitement also has the element of encouragement. By incitement, the person is provoked by strong passion or feeling to commit an offence. (See Kaza v State (2008) LPELR-1683 (SC) 1 @ 58; [2008] 7 NWLR (Pt. 1085) 125.

It is very arguable that the purpose of the publication by the learned Silk is to embolden, encourage and provoke the good people of Rivers State to rise up in arms against the democratically elected government of Rivers State headed by Governor Wike and thereby cause a break-down of law and order.

What makes the incitement in question palpably dangerous is the fact that it is founded on damaging falsehood and putrid mischief. For instance, the question whether a particular act is lawless or not is one of law and cannot be determined in vacuo, but rather by reference to the law relevant to the matter. Therefore, where an act sought to be impugned is consistent with the relevant law, no question of lawlessness can arise.  Similarly, where power derived from statute has been exercised in accordance with due process of law, no issue of arbitrariness can arise.

Secondly, in relation to the arrest and arraignment of the two pilots of Caverton Helicopters Limited, whilst I will refrain from commenting on the matter because it is still subjudice, it suffices to state that no court of law has struck down either the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations 2020 or the Executive Order RVSG 01, 2020 which formed the foundation of the legal action taken against the defendants before the Chief Magistrates’ Court, Port Harcourt.

Thirdly, the Governor of Rivers State did not say that the Rivers State Government would auction all the vehicles impounded from defaulters of the Executive Order RVSG 06, 2020 through executive fiat. On the contrary, what the Governor stated was that he has directed the Honourable Attorney-General of Rivers State to take appropriate steps to ensure public auction of the impounded vehicles.

Where a matter has been referred to the Honourable Attorney-General of the State by the Governor, it would be fair to assume that the Attorney-General as the Chief Legal Adviser of government (see Nigerian Engineering Works Ltd v. Denap Ltd [2001] LPELR-2002 (SC) 1 @ 21), and the Chief Law Officer, custodian and protector of the Constitution in the State (see Elelu-Habeeb v. A-G. Federation (2012) LPELR-15515 (SC) 1 @ 104-105) will follow due process of law in carrying out the directives of government. It would be unfair to associate the office of the Attorney-General of any State of the Federation with illegality.

It is important to restate that the vehicles were impounded because their owners were caught violating Executive Order RVSG 06, 2020 which prohibits human and vehicular movements in the two mentioned local government areas during the period of lock down. See paragraphs 1 and 2 of the Executive Order. By virtue of regulation 1 of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020, any person who contravenes any regulation made under the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations, 2020 or any Executive Order made thereunder commits an offence and is liable on conviction to a fine of:

(a) N50,000 (fifty thousand naira) where the offender is a natural person; and

(b) N1000, 000 (one million naira) where the offender is a body corporate.

Under regulation 2 of the said Regulations (No. 2) 2020, a person who is convicted in accordance with regulation 1, shall in addition to the penalty specified therein, forfeit to the State any vehicle or item used in the commission of the offence. It follows from a community reading of regulations 1 and 2 of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020, that forfeiture of any vehicle or item used in the commission of an offence follows automatically from the fact of conviction. In other words, where the Magistrates’ Court at the conclusion of summary trial (see regulation 3) convicts a defendant for breach of any regulation or executive order, the court can order forfeiture in addition to the penalty specified in regulation 1 which is payment of fines. Clearly, the forfeiture provided for under regulation 2, is a court-ordered forfeiture. Accordingly, no vehicle could be auctioned without an Order of the trial Magistrate Court following conviction of the owner thereof.

The question that arises from the foregoing is whether a court-ordered forfeiture under regulation 2 of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020 is unconstitutional? The clear answer to this question is most respectfully, in the negative.

Although it is conceded that the right to property is explicitly guaranteed under section 44 (1) of the 1999 Constitution (as amended), the truth of the matter is that the right is not guaranteed in absolute terms but is subject to exceptions. Section 44 (2) of the 1999 Constitution provides explicitly that:

“Nothing in subsection (1) of this section shall be construed as affecting any general law —

(a)————————–

(b) for the imposition of penalties or forfeiture for the breach of any law, whether under civil process or after conviction for an offence.”

It is clear from the above sub-section (2) of section 44 that the 1999 Constitution permits forfeiture of any property following conviction of the owner for an offence. (See Adeyemi-Bero v. Lagos State Development Properties Corporation (2012) LPELR-20615 (SC) 1 @ 43-44).

I am aware of the extant section 36 (12) of the 1999 Constitution which provides that no person shall be convicted of any criminal offence unless the offence is defined and the penalty therefore prescribed in a written law. The same sub-section 12 of section 36 of the constitution defines the phrase “written law” to mean an “Act of the National Assembly or a Law of a State, and subsidiary legislation or instrument under the provisions of a law.” The literal interpretation of this provision is that an offence can be created by either a principal law or subsidiary legislation or instrument such as regulations or executive order.

It cannot be disputed that the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) qualify as a subsidiary legislation or instrument. Section 37 (1) of the Interpretation Act defines “subsidiary instrument” as “any Order, rules regulations, rules of court or bye- laws made either before or after the commencement of this Act in exercise of power conferred by an Act. The power of the Governor of Rivers State to issue the Regulations in question is derived from sections 2, 4 and 8 of the Quarantine Act, Cap. Q2 LFN, 2004.

The COVID-19 Regulations and Executive Orders issued by the Governor of Rivers State cannot be equated with the “directive” issued by the Governor of Lagos State restricting movements during the monthly sanitation exercise in that State which formed the subject matter in Okafor v. Government of Lagos State (2016) LPELR-41066 (CA) 404. The “directive” in Okafor’s case was neither a regulation nor an executive order made by the Governor of Lagos State.

In conclusion, it is submitted that there is nothing in the Regulations and Executive Orders under reference that violates section 44 or any other provision of the 1999 Constitution. The operation of the government of Rivers State is founded on the Rule of Law and respect for civil liberties. However, the government will not shirk its responsibility to enforce all extant laws including subsidiary legislation or instrument unless they are struck down by a court of competent jurisdiction.

ABOUT THE AUTHOR

Professor Zacchaeus Adangor, the Honourable Attorney General and Commissioner for Justice, Rivers State, was an Associate Professor, Faculty of Law, Rivers State University, Port Harcourt, Nigeria.