HOTELS vs WIKE: It is widely known now that Governor Nyesom Wike demolished two Hotels in Rivers State on Sunday 10th May, 2020 as an enforcement measure under the Regulation made by him pursuant to powers conferred by sections 4 and 8 of the Quarantine Act 1926. This was purportedly to prevent the spread of Corona virus in Rivers State. We of CDHR are shocked by the ignorance on the part of so many persons including a Senior Advocate of Nigeria in trying to confuse issues in an attempt to justify the totally illegal misadventure of Governor Wike. It is for the aviodance of any doubts that CDHR finds it necessary to make these clarification.
1. PENALTY PROVIDED BY QUARANTINE ACT 1926
By virtue of section 5 of the Quarantine Act, (which has not be amended) the penalty for a violation of the Regulation made pursuant to the Quarantine Act is N200 (Two Hundred Naira) or imprisonment for a term of 6 months or both.
The position of the law is clear that where a written law stipulates the penalty for an offence created under a law, there can be no departure from the penalty which the law stipulates. In the Quarantine Act, there was no provision for the demolition of the property of any owner who opened the premises in violation of the Quarantine Act Regulations.
2. POWER TO TRY OFFENDERS AND IMPOSE PUNISHMENT
Section 7 of the Quarantine Act gives the power to try and impose any penalty for the violation of the Quarantine Act or Regulations thereunder, on the Magistrate Court. The consequence of this is that any person accused of violating the Act or Regulation must be arraigned before a Magistrate Court, where he would be tried by an impartial Court, represented by a Counsel of his choice and given an opportunity to state his defence. It is only when the Court finds him guilty that the penalties stipulated under section 5 of the Quarantine Act, which is a fine of N200 (Two Hundred Naira) or imprisonment for a term of 6 months, or to both fine and imprisonment, can be imposed.
Even the Magistrate who hears such a matter does not have the power to impose a penalty different from that stipulated by the Quarantine Act. The Magistrate cannot
order the demolition of any property, as that is not the penalty stipulated by law. This is a Constitutional provision contained in section 36(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that “….no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”.
3. RIGHT OF APPEAL
Even where the Court has convicted an offender, he still has the right of appeal against the conviction and/or sentence before the execution of the sentence. This is provided for in section 485(1) of the Administration of Criminal Justice Act.
4. THE QUARANTINE REGULATION MADE BY GOVERNOR WIKE CANNOT OVERRIDE THE QUARANTINE ACT
It is unheard of for a Subsidiary Regulation to amend the Principal Act from which it derives its authority. The principal enactment is superior to the regulation made under it. The Regulation or Governor Wike’s so called Directory or Advisory must conform to the Principal Act and cannot extend, modify, amend or run contrary to The Principal Enactment. The Supreme Court made this very clear in the case of Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292 at page 327 paras. C-D Ratio 9.
Governor Wike cannot in the guise of making a Covid-19 Regulation extend his authority, which is limited to the making of the Regulation, beyond what the Quarantine Act provides, and confer on himself as Governor, judicial powers to try offenders, impose and execute the punishment. This is the duty of the Magistrate Court. The Governor cannot also extend the penalty for default or infringement of any Regulation made from the fine and terms of imprisonment stipulated under the Quarantine Act to confiscation and auction of property and demolition of buildings.
What Governor Wike has done is contrary to law. Contrary to the views of those trying to justify Governor Wike’s objective in doing what he has done, a lawful objective cannot be achieved by an unlawful means. The view of Niccolo Machiavell, that the end justifies the means, has no place in any democratic society.
1. CONSTITUTIONAL BREACHES BY GOVERNOR WIKE
Governor Wike in his enforcement of the Covid-19 Regulation through demolition of those two Hotels committed the following constitutional breaches.
A. He made a Regulation that went beyond what is permissible under the enabling Quarantine Act.
B. He unlawfully assumed the jurisdiction that was vested in the Magistrate Court to determine the guilt or innocence of the alleged violators of the Regulation.
C. He assumed a procedure that did not guarantee the right of fair hearing to The Accused, in that:
i. The alleged offenders were not given notice of any formal charge specifically stating their offence;
ii. The alleged offenders were not arraigned before the Magistrate Court;
iii. The alleged offenders were not allowed legal representation by Counsel of their choice;
iv. No trial was done in a public place to which people had access
v. No formal determination of guilt and conviction; and
vi. No opportunity to exercise the right of appeal before execution of the penalty.
D. He imposed a penalty not provided for by the law in violation of the constitution and the enabling enactment.
2. Governor Wike must acknowledge that the steps he took were totally wrong in law.
1. He must publicly apologise to the owners of the property, and pay them full compensation from his own personal funds.
2. He also must apologise to the Nigeria People as a whole.
3. We call on Governor Wike and his Attorney General to resign immediately.
DR. OSAGIE OBAYUWANA
on HOTELS demolished by WIKE