The issue of Mr.Chinakwe who named his dog Buhari is fast engendering turbulent controversies. It is disquieting to know that a trifle has become a nagging headache and has assumed a pedestal of undue concern. I will be paying attention to the institutional sanity of the police force in this issue. Flagrant disabuse of common sense and legal powers to effect arrest is now the stock-in-trade for police officers. Mr. JOE Chinakwe, after being arrested for calling his dog Buhari, which caused a pandemonium where he resided, the man was granted bail on August 22 and sent to Ibara prison following his arraignment at the Ota Magistrate Court.

Mr. Chinakwe has been remanded in prison custody, awaiting another round of the trial proceedings next month. This poor trader has been arraigned before the Magistrate court of Ogun state under Section 249 (1) (d) of the Criminal Code Cap 29 Vol.11 laws of Ogun State of Nigeria 2006. The police Officers claim that he is guilty of a “conduct” likely to cause breach of peace. Now, I will take the pains to flash a Jurisprudential searchlight of Criminal Law on the issue.. The provision relied on by the police is to the effect that: “every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace” shall be deemed idle and disorderly persons, and may be arrested without warrant, and shall be guilty of a simple offence, and shall be liable to imprisonment for one month.

However, The act of calling one’s for “Buhari” does not translate to conducting one’s self in a manner that is likely to breach peace. It does not breach peace in any form as contemplated under the above section. Foremost, it is not a public act neither does the effect translate to public breach of peace.

The test of what amounts to a breach of peace must be an act that is generally seen by reasonable members of a society as legally and morally reprehensible. Take note that the use of the words “legally” and “morally” are not to serve mere repetitive purposes. If it is perceived to be morally reprehensible but not legally reprehensible, it is not a conduct that is likely to cause breach of the peace IN LAW. At worst, such “conduct” is merely ‘contra bonos mores’ (Against good morals) but not ‘contra pacem’ (Against public peace) in the sense of being a breach of the criminal law. The maxim is ‘nullumcrimennullapoena sine lege’, that is, there is no crime nor punishment except in accordance with law. The Supreme Court of Canada made this very clear in the case of Frey v. Fedoruk ET AL (1950) S.C.R. 517 when it held that:

“Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency.”

The Federal Supreme Court followed the reasoning with a smattering disparity, in the case of Nelson Ohanyere& 9 Others v Inspector General of Police (1957) SCNLR 213, where Jibowu, AG. F.C.J. (as he then was) held thus: “The test to be applied is whether the conduct of the accused was such that a breach of the peace might reasonably have ensued, and the fact that no breach of the peace, in fact, took place is irrelevant.” It is not permissible under our constitutional law and criminal jurisprudence for a person to be prosecuted for conduct likely to cause a breach of the peace contrary to Section 249 (1) (d) of the Criminal Code Law of Ogun State when the very conduct complained of is not in itself an unlawful act. In the instant case, is it a criminal offence in any Act of the National Assembly or law of any State House of Assembly of the federation, including Ogun State for a person to give his pet dog a human name or name a dog after a particular human being, irrespective of the status of the human being after which the dog is named? The police knew that the answer to this simple question is Capital NO. Yet, it recklessly and unlawfully proceeded to effect the arrest and detention of Mr.Chinakwe for naming his pet dog “Buhari“.

Following the above, the fact that one part of the community (the northerners) which Mr.Chinakwe resides do not approve of his idea of calling a dog Buhari does not make it an act likely to cause breach of peace. The court already mentioned that the test is that of reasonable members of the society. Apart from the few northerners in the area who complained, nobody else has raised an alarm over the act of Mr.Chinakwe. It is indecorous to have him arraigned on account of the section relied on by the State counsel. Clearly, that section does not cover for the act of the accused before the act of calling a dog any name is not a crime in itself. Precedents have shown that the act itself needs to be of a nature that is criminally deprecated before it can be said to be a breach of peace. Religious and moral sentiments are not laws. Why must we place so much emphasis and reliance on the fact that the northerners in the area do not approve of the act? If they don’t approve of it, so what? I was greatly ashamed when the Police Public Relations Officer spoke concerning the wherefores of Mr.Chinakwe’s arrest. He spoke at length and made no sense. According to the Police Public Relations Officer (PPRO) in Ogun State, ASP AbimbolaOyeyemi, he had this to say:

“He was arrested last Saturday and we are taking him to court later today (Tuesday) or tomorrow morning (today). You know an average Northerner will feel bad over such a thing. It can cause serious ethnic crisis or religious confrontation because when you are relegating such a name to a certain person, you are indirectly insulting him.”

Since when did the police force become a custodian of northern sentiments and emotions? Morally speaking, Mr, Chinakwe may be reprimanded for disregarding the pedestrian and baseless resentments of the northerners but in Law, that is never a ground to punish anybody. Mr.Chinakwe, from the evidence gathered thus far has avowed that he had honest reasons for christening his dog with Buhari as a name. He expressed his dissatisfaction at to the fact that the complainant is an illegal immigrant from Niger Republic, yet, the police officers chose to allude credence to his bogus allegations of malice and spite. According to Mr.Chinakwe, he said to Punch Newspapers:

“It is annoying because the complainant is from Niger Republic and I am sure he is one of those illegal aliens in this country. He connived with one Police Sergeant from the Northern part of Nigeria called Musa, who works at Sango Police division to humiliate me. Worse still, the Divisional Police Officer there, did not help matters as he refused to entertain any plea from me after I was arrested that Saturday night. He simply ordered his men to throw me into the cell. I did not commit any offence. I named my beloved pet dog Buhari, who is my hero. My admiration for Buhari started far back when he was a military Head of State. It continued till date that he is a civilian President. After reading his dogged fight against corruption, which is like a canker worm eating into the very existence of this country, I solely decided to rename my beloved dog which I called Buhari, after him. I did not know that I was committing an offence for admiring Buhari”

It is completely immaterial that he paraded his dog along the community with the name finely etched on both sides. Morality may constrain him but legally speaking, he commits no wrong for so doing. If he cannot do such at will, what is the essence of his combined fundamental rights of personal Liberty and Movement in Sections 35 and 41 of the Constitution of Nigeria, 1999 (as amended)? Calling a dog Buhari is like calling a dog Bush, Wood, Good luck, Barack and so on. These cannot translate to a crime and if it must translate into a conduct likely to cause breach of peace, it must be construable by reasonable members of the entire public to be so capable of such irate feelings. This is not the case. The trader is being punished for what is not a crime whereas, it is stated clearly under Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states thus:

” 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 therefore 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. We are guided by the pace setting decision in Aoko v Fagbemi 1961) 1 All NLR 273 where the Apex Court unanimously quashed the conviction of the appellant for adultery since adultery was found not to be a criminal offence in any written law in the South.

Often times in this country, we have heard of comedians calling former President Obasanjo a hideous monkey, Comedians took it in turns to rubble the wife of former President, Good luck, in the waters of shame as she defied every rule of English Grammar. Some generous comedians even recommended that she had a room full of “Brighter Grammar” for beginners. Many other comedians have tongue lashed past presidents yet we had no problem of arrest for the statements they made. The northerners got angry in Ogun State when a man called his dog Buhari and the Police Force acquiesced to this indiscretion. is this a legal tussle or a religious battle? Because the northerners have shown disapproval we should do the wrong thing just to suit them? Are our laws legal only when they come to terms with what the northerners deem right? This is a “tufiakwa” in our criminal jurisprudence.

Assuming not conceding that there was a law that criminalises the act of calling one’s pet a name, then it would have been of Catholic (general) application to the entire states. Therefore, it would not be only illegal to call a dog Buhari but to also call it Destiny, Patience, Saraki, Chinedu, Olu and all other names. It is impracticable, implausible, unthinkable, impossible, unreasonable, illogical, philistine, and unrealistic for parliament to make such a law since a list of names forbidden for such “conduct” would be needed. That would open up a floodgate of litigations as a another legal problem of violation of the fundamental right to freedom from Discrimination as contained in Section 42 of the Constitution of Nigeria, 1999 would emerge. Perhaps, the trite “Bingo” for dogs would be highly litigious thereafter.

It is my humble submission that Section 249 (1) (d) of the Criminal Code Law of Ogun State, 2006 cannot be a blanket provision to clothe the accused, Mr Chinakwe with culpability in this case. The definition provided under that section is not coterminous with the act of the accused in any form. Judicial precedents have laid down the logic to be considered by the court and that is the reasonableness of the conduct in the consideration of right thinking members of the society and of course, that the act per se, must be of a nature that is unlawful. For instance, the act of shooting guns into the air without caution and reason, in the presence of people such as to put them in fear of danger, is an assault tortiously and criminally. This is not the case in this extant problem as the act of brandishing a dog with a moniker which the owner fancies is not a civil or criminal wrong. It cannot generally arouse an unrest or destabilize the course of peace except some persons decide to take it personally and run riot. In such a circumstance, the law is not supposed to salvage such by penalising the owner of such a dog.

I weep bitterly when I consider the path which our criminal jurisprudence has taken. Lawyers and Police officers have rendered themselves to full bloated indiscretion. The Lawyer for Mr.Chinakwe pleaded that he is not guilty but refused to enter a No Case Submission since the evidence that the two witnesses provided couldn’t have provided a Prima facie case of breach of Section 249(1) (d) of the Criminal Code Law of Ogun State, 2006. The adjournment of the case heightens the problem of the accused is he remains in remand till next month. This is really regrettable.

The police force characteristically has a peculiar way of shaming itself and showing that indeed, a house full of illiterates cannot yield but acute malingering from common sense. It is hoped that a drastic reform will be taken to cleanse the stables of criminal litigation in Nigeria. Police Officers should be in the know of the relevant laws and their applicability to every case which comes to them. The slow process of court proceedings does no good to an innocent accused person rather, it weaves same in a web of despair and agony. Facts of every case must be considered with a fine tooth comb before the machinery of the law is activated and navigated through a wrong track by the unversed.

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