By Zaarif Ibrahim Esq
Recall that Gov. Simon Lalong of Plateau State has declared a seven-day lockdown in the entire state beginning from Thursday, April 9, 2020 to 23rd April, 2020 to curb the spread of the deadly Coronavirus pandemic in the state.
To enforce the lockdown order, the Governor created a Mobile Court that is saddled with the responsibility of trying and punishing convicted violators of the order.
Within seven days of the lockdown, over 870 defaulters have been tried and convicted by the mobile courts. Pertinent to ask are- is the creation of the courts, the prosecutions and subsequent convictions of the defaulters made within the arm bit of the constitution?
Creation of the Mobile Court:
Firstly, the Mobile Court was created under the regulation and directives of the Governor of Plateau State and not by an Act of the National Assembly or a law of the Plateau State House of Assembly. Section 6(4) of the 1999 Constitution of the Federal Republic of Nigeria is of the provision that “….. the National Assembly or State House of Assembly have the powers of establishing courts other than those mentioned in the Constitution with subordinate jurisdiction to that of a High Court…”
Moreover, section 6(5)(k) of the same Constitution further states that “…such other courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws..”
In Gadi v. Male (2010) 7 N.W.L.R. (Pt. 1193)225 at 266, the court opined inter alia that: “… Such far-reaching and fundamental powers as conferred upon the courts are traceable to the constitution and laws as may be enacted by the legislature, Federal and/or state…”
Jurisdiction of the Mobile Court:
According to Bryan Garner, Black’s Law Dictionary, Ninth Edition, (West Publishing, 2009) p.297; “Jurisdiction is a Court’s power to decide a case or issue a decree”
Also, the basis of jurisdiction of Nigerian courts is the Constitution of the Federal Republic of Nigeria. By virtue of the 1999 Constitution of the Federal Republic of Nigeria, all courts in the Nigerian federation derive their jurisdiction or competence from the constitution. When a court has no jurisdiction, it is futile exercise for that court to embark on the hearing of a matter. See the case of Osadebay v. A.G. Bendel (1991) 1 N.W.L.R. Pt. 169 525 at pp. 557 – 558.
It is clear from the foregoing that a court of law must be established either by the Constitution or by the law of a State House of Assembly before it can even assume jurisdiction. Hence, the Mobile Court created under the regulation of the Governor of Plateau State is null, void and has no jurisdiction to try defaulters.
The right to fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria and Doctrine of Nemo Judex in Causa Sua have been grossly violated in the establishment and administration of the mobile courts.
Section 36 of the 1999 Constitution of the federal republic of Nigeria has made it categorically clear that fair hearing is Constitutional and no one shall be deprived of his right to fair hearing.
The Nemo judex rule, commonly referred to as the rule against bias, ensures that a “judge” is not partial. He should not be influenced by personal interest; for jurists and laymen alike have insisted that justice should be manifestly seen to have been done. Where the judge has interest in the subject matter, or in the party, or his own financial interest is involved, the objectivity of his decision is bound to be questionable.
On a bias composition, Garba v. University of Maiduguri and ors (1986) N.W.L.R 550 is instructive. The court was clear that it was contrary to the right to fair hearing for the Deputy Vice-Chancellor, who was a victim of the students’ disturbance to chair the Disciplinary Committee.
Now looking at the Mobile Court that was created by the Governor for plateau State for the preservation of his own regulations and directives will convince one that, the Mobile Court and the so called judges manning the Mobile Courts are all contrary to the provision of fair hearing as enumerated above and therefore, the prosecution and conviction of the defaulters cannot stand the test of law.
-The administration and procedure adopted by the Mobile Court also violate the Right of an accused person to adequate time and facilities to defend himself. Section 36(6)(b) of our Constitution states that any person who is charged with criminal offence shall be entitled to be given adequate time and facilities to prepare for his defence. However, in the Plateau State Mobile Court, the reverse is the case as defaulters were convicted summarily without adequate time and facilities to prepare for their defense.
-The Right of an accused person to a legal Practitioner of his own choice has also been violently violated. Section 36(6)(c) of our constitution states that every person charged with a criminal offence shall be entitled to defend himself or by a legal Practitioner of his own choice. The case of Awolowo V Minister of Internal Affairs has also reiterated the provision of section 36(6)(c) of the Constitution mentioned above.
The right to legal Practitioner of ones’ choice has long been chewed and buried by the Plateau State Mobile Court as defaulters were not allowed to engage the services of lawyers who will represent them.
Furthermore, defaulters are being charged before the mobile courts and convicted of offences that are unknown to law: This is because, an act or omission is only a crime if it is so prescribed in a written law. By virtue of Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person is guaranteed the fundamental right not to be convicted unless the offence is defined and the penalty is prescribed in a written.
It states as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
Buttressing here, the Governor’s directives directing everyone to stay at home and be locked in which the defaulters have purportedly contravened is not an Act of the National Assembly, or a Law of the Plateau State House of Assembly. Neither it is a subsidiary legislation or an instrument under the provisions of the law.
Therefore, by the authority of Section 36 (12) of the Constitution, and the Supreme Court decision in Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400, the conviction of over 870 defaulters by the Plateau State Mobile Court is unconstitutional and a violation of their fundamental human rights as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.
Punishments of the Mobile Court: The punishment imposed by the Mobile Court is clearly overreaching and illegal as defaulters were prosecuted and convicted under an offence that is unknown to law which is clearly against the provision of section 36(12) of our constitution which is to the effect that “…no one shall be convicted under an offence that is unknown to law….”
Again some of the defaulters were subjected to a hard labor in the name of community service which is a clear mastication of their right to dignity of human person. Section 34(1)(c) “…no person shall be required to perform forced compulsory labour…”
Of the worst punishmenst meted illegally against the defaulters, were sentencing some of the defaulters to the term of 3 to 6 months imprisonment which is directly antithetical to their right to liberty and freedom.
CONCLUSION
Conclusively, the point I’m trying to portray here is that, the creation of the Mobile Court by the Plateau state Government was unconstitutional. It is true that, the creation of the Mobile Court was a necessity but, it ought to have been made through the due process of the law. Plateau state Governor should go back to the drawing board, correct the anomalies and give the Mobile Court a legal stand.
Also the prosecution and conviction of the defaulters were null and void. Any person convicted under such a kangaroo court can approach the High Court of a State or a Federal High Court for the enforcement of his fundamental rights.
Zaarif Ibrahim Esq writes from Jos. He can be reach via [email protected]
