By Zaarif Ibrahim Esq
Recall that Gov. Simon Lalong of Plateau State has declareda seven-day lockdown in the entire state beginning from Thursday, April 9, 2020to 23rd April, 2020 to curb the spreadof the deadly Coronavirus pandemic in the state.
To enforce the lockdown order, the Governor created a MobileCourt that is saddled with the responsibility of trying and punishing convicted violators ofthe order.
Within seven days of the lockdown, over 870 defaulters havebeen tried and convicted by the mobile courts. Pertinent to ask are- is the
creation of the courts, the prosecutions and subsequent convictions of thedefaulters made within the arm bit of the constitution?Creation of theMobile Court:
Firstly, the Mobile Court was created under the regulationand directives of the Governor of Plateau State and not by an Act of theNational 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 provisionthat “….. the National Assembly or State House of Assembly have thepowers of establishing courts other than those mentioned in the Constitutionwith subordinate jurisdiction to that of a High Court…”
Moreover, section6(5)(k) of the same Constitution further states that “…such other courtsas may be authorised by law to exercise jurisdiction at first instance or onappeal on matters with respect to which a House of Assembly may makelaws..”
In Gadi v. Male (2010) 7 N.W.L.R. (Pt. 1193)225 at 266, thecourt opined inter alia that: “… Such far-reaching and fundamental powers asconferred upon the courts are traceable to the constitution and laws as may beenacted by the legislature, Federal and/or state…”
Jurisdiction of theMobile Court:
According to Bryan Garner, Black’s Law Dictionary, NinthEdition, (West Publishing, 2009) p.297; “Jurisdiction is a Court’s powerto decide a case or issue a decree”
Also, the basis of jurisdiction of Nigerian courts is theConstitution of the Federal Republic of Nigeria. By virtue of the 1999Constitution of the Federal Republic of Nigeria, all courts in the Nigerianfederation derive their jurisdiction or competence from the constitution. Whena court has no jurisdiction, it is futile exercise for that court to embark onthe 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 beestablished either by the Constitution or by the law of a State House ofAssembly before it can even assume jurisdiction. Hence, the Mobile Courtcreated under the regulation of the Governor of Plateau State is null, void andhas no jurisdiction to try defaulters.
The right to fair hearing as enshrined in the 1999Constitution of the Federal Republic of Nigeria and Doctrine of Nemo Judex inCausa Sua have been grossly violated in the establishment and administration ofthe mobile courts.
Section 36 of the 1999 Constitution of the federal republicof Nigeria has made it categorically clear that fair hearing is Constitutionaland no one shall be deprived of his right to fair hearing.
The Nemo judex rule, commonly referred to as the ruleagainst bias, ensures that a “judge” is not partial. He should not beinfluenced by personal interest; for jurists and laymen alike have insistedthat justice should be manifestly seen to have been done. Where the judge hasinterest in the subject matter, or in the party, or his own financial interestis involved, the objectivity of his decision is bound to be questionable.
On a bias composition, Garba v. University of Maiduguri andors (1986) N.W.L.R 550 is instructive. The court was clear that it was contraryto the right to fair hearing for the Deputy Vice-Chancellor, who was a victimof the students’ disturbance to chairthe Disciplinary Committee.
Now looking at the Mobile Court that was created by theGovernor for plateau State for the preservation of his own regulations anddirectives will convince one that, the Mobile Court and the so called judgesmanning the Mobile Courts are allcontrary to the provision of fair hearing as enumerated above and therefore,the prosecution and conviction of thedefaulters cannot stand the test of law.
-The administration and procedure adopted by the MobileCourt also violate the Right of an accused person to adequate time andfacilities to defend himself. Section 36(6)(b) of our Constitution states thatany person who is charged with criminal offence shall be entitled to be givenadequate time and facilities to prepare for his defence. However, in thePlateau State Mobile Court, the reverse is the case as defaulters wereconvicted summarily without adequate time and facilities to prepare for theirdefense.
-The Right of an accused person to a legal Practitioner ofhis own choice has also been violently violated. Section 36(6)(c) of our constitution states that every personcharged with a criminal offence shall be entitled to defend himself or by alegal Practitioner of his own choice. The case of Awolowo V Minister ofInternal Affairs has also reiterated the provision of section 36(6)(c) of theConstitution mentioned above.
The right to legal Practitioner of ones’ choice has longbeen chewed and buried by the Plateau State Mobile Court as defaulters were notallowed to engage the services of lawyers who will represent them.
Furthermore, defaulters are being charged before the mobilecourts and convicted of offences that are unknown to law: This is because, anact or omission is only a crime if it is so prescribed in a written law. Byvirtue of Section 36 (12) of the Constitution of the Federal Republic ofNigeria, 1999 (as amended), every person is guaranteed the fundamental rightnot to be convicted unless the offence is defined and the penalty is prescribedin a written.
It states as follows: “Subject as otherwise provided bythis Constitution, a person shall not be convicted of a criminal offence unlessthat offence is defined and the penalty therefor is prescribed in a writtenlaw, and in this subsection, a written law refers to an Act of the NationalAssembly or a Law of a State, any subsidiary legislation or instrument underthe provisions of a law.”
Buttressing here, the Governor’s directives directingeveryone to stay at home and be lockedin which the defaulters have purportedly contravened is not an Act of theNational Assembly, or a Law of the Plateau State House of Assembly. Neither itis a subsidiary legislation or an instrument under the provisions of the law.
Therefore, by the authority of Section 36 (12) of theConstitution, and the Supreme Court decision in Aoko V. Fagbemi & Ors.(1961) 1 All NLR 400, the conviction of over 870 defaulters by the PlateauState Mobile Court is unconstitutional and a violation of their fundamentalhuman rights as enshrined in the 1999 Constitution of the Federal Republic ofNigeria.
Punishments of the Mobile Court: The punishment imposed bythe Mobile Court is clearly overreaching and illegal as defaulters wereprosecuted and convicted under an offence that is unknown to law which is clearly against the provision ofsection 36(12) of our constitution which is to the effect that “…no one shall be convicted under anoffence that is unknown to law….”
Again some of thedefaulters were subjected to a hard labor in the name of community servicewhich is a clear mastication of their right to dignity of human person. Section34(1)(c) “…no person shall be required to perform forced compulsory labour…”
Of the worstpunishmenst meted illegally against the defaulters, were sentencing some of thedefaulters to the term of 3 to 6 months imprisonment which is directlyantithetical 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 oughtto have been made through the due process of the law. Plateau state Governorshould go back to the drawing board, correct the anomalies and give the MobileCourt a legal stand.
Also the prosecutionand conviction of the defaulters were null and void. Any person convicted under such a kangaroo court canapproach the High Court of a State or a Federal High Court for the enforcementof his fundamental rights.
Zaarif Ibrahim Esq writes from Jos. He can be reach via [email protected]
