Federal Republic Of Nigeria V Alhaji Mika Anache (M) & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, JSC
Chief Adebiyi Olafisoye is the appellant. He was charged along with three other persons before the High Court of the Federal Capital Territory on two counts under the Corrupt Practices and Other Related Offences Act, 2000. I read the counts:
COUNT I
“That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN), on or about the 16th day of November, 2000 at Abuja in the Abuja Judicial Division, conspired with one another to give as gratification the sum of N3,500,000.00 (Three million, five hundred thousand naira only) to Alhaji Mika Anache a member of the Judicial Commission of Inquiry for the Investigation of the Management of Nigeria Airways Limited and other members of the said Commission in order to induce the members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of members of the Commission and thereby committed an offence contrary to section 26(1)(c) and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT II
That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN) on or about the 16 day of November, 2000 at Abuja in the Abuja Judicial Division, gave as gratification the sum of N3,500,000.00 (Three million, five hundred thousand naira only) to Alhaji Mika Anache a member of the Judicial Commission of Inquiry for the Investigation of the Management of Nigeria Airways Limited and other members of the said Commission, in order to induce members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of the members of the Commission and thereby committed an offence contrary to section 9(1)(a) and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.”
The appellant objected to the jurisdiction of the High Court on the ground that the Corrupt Practices and Other Related Offences Act 2000 is unconstitutional and void. The objection was overruled in a ruling delivered on 24th June, 2000. Basing its decision on the earlier case of Federal Republic of Nigeria V. Andrew Tyem and others Suit No. CR/2/2001 delivered on 13 June, 2001, the court came to the conclusion that the National Assembly validly enacted the Corrupt Practices and Other Related Offences Act. The court based its decision on the combined effect of sections 4(2), 15(5), items 60(a) and 67 in Part I of the Second Schedule and section 2(a) of Part III of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999. The court accordingly dismissed the objection of the appellant.
The appellant appealed to the Court of Appeal against the Ruling of the High Court of the Federal Capital Territory. The Court of Appeal referred the following questions for reference to the Supreme Court:
‘(i) Whether the combined effect of the provisions of sections 4(2), 15(5), items 60(a), 67 and 68 in Part I of the Second Schedule and section 2(a) of Part III of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999, confer powers on the National Assembly to make laws for the peace, order and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power.
(ii) In the light of the answer to Question (i), whether the National Assembly has power to enact sections 9(1)(a), 9(1), 26(1)(c) and 26(3) of the Corrupt Practices and Related Offences Act, 2000.”
The Court of Appeal accordingly referred the above two questions by way of case stated in accordance with the provisions of section 295(3) of the Constitution to the Supreme Court.
As usual, parties filed and exchanged briefs. Appellant formulated the following issues on the two questions for reference to this court:
“Issue 1. The Act as an exercise of power by the Federal Government.
Issue 2. Principles governing constitutional validity of governmental Acts in a federal system.
Issue 3. Whether the Act impedes or interferes with a State Government’s management of its affairs.
Issue 4. Whether the entire Chapter 2 on Fundamental Objectives and Directive Principles of State Policy (particularly Section 15(5) thereof) are a Legislative, Executive or Judicial power.
Issue 5. Whether the Act is intra vires or ultra vires the National Assembly under section 4 of the 1999 Constitution.
Issue 6. Whether the Act is unconstitutional for uncertainty.
Issue 7. Whether the bad provisions of the Act can be severed.”
The Complainant, the Federal Republic of Nigeria, also filed a brief titled “Complainant/Appellant’s Brief of Argument”. The Complainant/Appellant would appear to have adopted the questions of reference to this court as its issues for determination as follows:
“(1) Whether the combined effect of the provisions of Sections 4(2), 15(5), Items 60(a), 67 and 68 in Part 1 of the Second Schedule and Section 2(a) of Part III of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999, confer powers on the National Assembly to make laws for peace, order and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power.
Whether the National Assembly has the power to enact Sections 9(1)(a), 9(1), 26(1)(c) and 26(3) of the Corrupt Practices And Other Related Offences Act, 2000.”
The “Complainant/Appellant” also filed a supplementary brief of argument with the following three issues for determination:
‘(i) Whether the National Assembly has the requisite power to enact the Corrupt Practices and Other Related Offences Act, 2000.
(ii) Whether the creation of offences in the Corrupt Practices and Other Related Offences Act, 2000 does not amount to a usurpation by the National Assembly of the powers of the State to create offences in criminal law thus rendering the Act unconstitutional and invalid.
(iii) Whether the Supreme Court can depart from its decision in Attorney-General of Ondo State V. Attorney-General of the Federation in determining this case.”
The appellant also filed a reply brief.
Learned Senior Advocate for the appellant, Chief F. R. A. Williams examined on lssue No. 1 some of the provisions of the Corrupt Practices and Other Related Offences Act, 2000, including the powers conferred on the Director of Public Prosecutions, and the Attorney-General of the Federation.
The reference in section 61(1) to the Attorney-General and to the Director of Public Prosecutions in section 5(2) of the Act must be read as a reference to the Attorney-General of the Federation and to the Federal Director of Public Prosecutions, since the Federal Government cannot, by its law, confer functions or impose duties on State Government functionaries, learned Senior Advocate submitted. He cited Attorney-General of Ogun State V. Attorney-General of the Federation (1982) 3 NCLR 166. He pointed out that the 1979 and 1999 Constitutions contain no such provisions for the inter-delegation of functions as did the 1960 and 1963 Constitutions. On Issue No. 2, learned Senior Advocate contended that the constitutional validity of a governmental Act in a federal system is governed by two principles, via: (1) the ultra vires doctrine and (2) the doctrine of mutual non-interference.
Learned Senior Advocate submitted that the ultra vires doctrine is a trite principle of constitutional validity with undisputed acceptability and force, and may be stated by saying that a governmental Act which is beyond or in excess of powers granted by the Constitution is null and void. To learned Senior Advocate, the only question arising in this case concerns the application of the doctrine i.e. whether the Corrupt Practices and Other Related Offences Act, 2000 is intra vires or ultra vires the National Assembly under section 4 of the Constitution.
On the doctrine of mutual non-interference, learned Senior Advocate submitted that the Supreme Court misconceived the nature, basis and effect of the doctrine in Attorney-General of Ondo State V. Attorney-General of the Federation which he cited as SC.200/2001. The case has been reported in (2002) 9 NWLR (Pt. 772) 222; (2002) 9 SCM, 1. He criticised the statement of Uwais, CJN, in respect of a possible breach of the principles of federalism and submitted that the doctrine is the basis, the foundation of every true federal system without which no such system can exist. It lies, not outside the Constitution, but within it, operating by way of an implied prohibition against the exercise of a constitutional grant of power in a manner that in its practical effect impedes, frustrates, stultifies or otherwise unduly interferes with another government’s management of its affairs or its continued meaningful existence as a government, learned Senior Advocate reasoned. He called in aid Professor B. O. Nwabueze: Federalism in Nigeria (1983) at page 3; McCullock V. Maryland 4 Wheat 31 (1891); D’Emden V. Pedder (1904) 1 CLR 91 at 111; West V. Commissioner of Taxation (1937) 56 CLR 657 at 681 and Sir Robert Garran’s article titled Development of the Australian Constitution” (1924) 40 LQR 202 at 215.
Still on the doctrine, learned Senior Advocate submitted that the doctrine rests on the pre-supposition that a government act in a federal system is within powers granted by the Constitution and that its concern is rather with the practical effect which the exercise of the power has on another government. He cited R. V. Commonwealth Court of Conciliation and Arbitration, Ex Parte Victoria (1942) 66 CLR 488; Melbourne Corporation V. Commonwealth (1947) 74 CLR 31 at 82-83.
On the principle of autonomy in a federal system, learned Senior Advocate argued that the principle implies further that neither the central government nor the regional ones can confer functions or impose duties, obligations, restrictions and liabilities on the functionaries of the other. He pointed out that this particular implication of the principle was expressly enacted in the 1963 Constitution in the provision forbidding the President as well as the federal legislature from conferring functions or imposing duties on the Governor or other functions of the State Governments without the consent of the State Governor and vice versa. He cited sections 99 and 100 of that Constitution. While these provisions are not repeated in the 1979 constitutions, the prohibition remains still applicable as a necessary implication of the autonomy of the federal and state governments in relation to each other, learned Senior Advocate argued. He cited Attorney-General of Ogun State V. Attorney-General of the Federation (supra).
On Issue No. 3, learned Senior Advocate pointed out that the Supreme Court decision in Ondo State case is right when it said that it “is true” that “the provisions of the Act impinge on the cardinal principles of federalism, namely, the requirement of equality and autonomy of the state government and non interference with the functions of state government”, but the judgment failed to consider the specific provisions of the Act impinging on those principles and the nature of the interference. Counsel examined the provisions of the Act in some considerable detail from pages 14 to 16 and ended by submitting that section 61(3) of the Act is clearly unconstitutional and void by the decision of the Supreme Court in Attorney-General of Ogun State V. Attorney-General of the Federation (supra).
On Issue No. 4, learned Senior Advocate dealt with the plenitude of legislative power granted to the federal and state legislatures under section 4 of the 1999 Constitution and non-justiciability of the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the Constitution and its implications in relation to the question whether the Chapter is a grant of power. On the plenitude of legislative power, learned Senior Advocate said that the provision in section 4 of the Constitution authorising the federal and state legislatures to make laws for the peace, order and good government of Nigeria or any part thereof, is a grant of sovereign law-making power in its entirety and plenitude. Every subject-matter with respect to which law can be made, including corruption and abuse of office is embraced within the power, counsel conceded. He submitted that under section 4 the federal and state legislatures, each within the limits of its power under the division of powers between them, have all the powers they need to legislate with respect to corruption and abuse of power, and that they do not need any more power to be conferred on them for the purpose by section 15(5) of the Constitution.
It was the submission of learned Senior Advocate that section 15(5) and other provisions in Chapter 2 of the Constitution grant no power but only impose a duty regarding the purposes for which the powers granted by the Constitution are to be employed. To learned Senior Advocate, the Supreme Court in Ondo State case erred in law and thereby distorted the whole scheme and design of the Constitution when it held that the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent.
On section 15(5) of the Constitution, learned Senior Advocate argued that even if, in clear distortion of the scheme and structure of the Constitution in the interpretation by the Hon. Chief Justice of Nigeria when he held that both the federal and state governments share the power to legislate in order to abolish corruption and abuse of office, section 15(5) is read as a grant of power to the federal and state governments, then the power so granted is not a concurrent one, as the lead judgment erroneously says, but a divided power. Each is to legislate on corruption within the limits of its powers under the division of powers between the federal and state governments.
Still on section 15(5), learned Senior Advocate argued that the provision must draw its meaning and effect from the character of the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the Constitution of which it is a part. The provisions of that Chapter are merely a declaration expressly made non-justiciable by the Constitution itself in virtue of section 6(6). He contended that the word “state” in section 15(5) refers, not to the federal government alone, but to both it and the state governments, each within the limits of the powers assigned to it by the Constitution. To learned Senior Advocate, to read section 15(5) as directed to the federal government alone would be a manifest distortion of the unequivocal meaning and intention of section 13 of the Constitution. He referred to Archbishop Okogie V. Attorney- General of Lagos State cited as Suit No. FHC/L/74/80 delivered on 30/9/80. This case has long been reported in (1981) 1 NCLR 218. He also cited Madras V. Champalan (1951) SCR 252 and submitted that the Fundamental Objectives and Directive Principles have also to conform to and run subsidiary to the autonomy of the state governments vis-à-vis the federal government and to the division of powers between them.
On the non-justiciability of the Fundamental Objectives and Directive Principles in Chapter 2, learned Senior Advocate submitted that the chapter is expressly made non-justiciable by section 6(6)(c). The non-justiciability of the Fundamental Objectives and Directive Principles is predicated on the premise that they are not a grant of legislative power, since, if they were, a large part of legislative power would be excluded from the jurisdiction of the courts contrary to section 4(8) of the Constitution, learned Senior Advocate reasoned.
On Issue No. 5, learned Senior Advocate dealt with (a) the extent of the legislative power of the Federal Government with respect to the creation and punishment of criminal offences, with particular reference to the offence of corruption, fraud and related offences; (b) extent of power conferred by item 60(a) of the Exclusive Legislative List; (c) assuming that Item 60(a) has power to abolish all corrupt practices and abuse of power, whether such power embraces power to legislate with respect to fraud and offences related thereto; (d) non justiciability of a law made pursuant to item 60(a) of the Exclusive Legislative List; and (e) whether item 67 of the Exclusive Legislative List has any bearing on the power of the National Assembly to enact the ICPC Act.
Dealing with (a) above, learned Senior Advocate said that the danger which the ICPC Act poses to the federal system and hence to unity and stability of Nigeria arises not so much from the Act being a usurpation of the powers of the state governments under the scheme of division of powers in the Constitution as from its being a grave interference with the autonomy of the state governments, their co-equality with the federal government and with the doctrine of mutual non-interference upon which the entire federal system is built; but the Act is also incontestably beyond the power of the National Assembly under the federal scheme of division of power in the 1999 Constitution.
Learned Senior Advocate argued that the creation and punishment of offences under the Constitution is largely a residual matter, since, it is not assigned to the federal government either in the body of the Constitution or in the legislative lists in the Second Schedule, and therefore the function belongs exclusively to the state governments, subject again to some exceptions. Counsel took pains to itemise some of the state offences punishable under the Criminal Code and the Penal Code. He also referred to some federal offences which he itemised under three categories. He included in the first category the offence of corruption which to me is material to this case. He cited R. V. Kidman (1915) without the name, volume and page of the law report. I hope I am able to locate the law report. He also cited Balewa V. Doherty (1963) again without the name, volume and page of the law report. I will certainly locate this as it is a popular Nigerian case. He cited McCollock V. Maryland (1819), as usual.
Learned Senior Advocate would seem to have conceded that the federal government has power to punish corruption and fraud in relation not only to its property but also to all matters within its legislative competence. This is a sound submission and a good one for the respondent.
Dealing with (b) above, learned Senior Advocate said that Item 60(a) of the Exclusive Legislative List must also draw its meaning and effect from the character and purpose of the Fundamental Objectives and Directive Principles of State Policy. Construed in that light, it does not, nor is it intended to confer on the federal government power to create and punish offences outside its power to do so under other provisions of the Constitution or power to derogate from the autonomy of the State Governments, counsel argued. He interpreted in some detail Item 60(a).
Dealing with (c) above, learned Senior Advocate examined specific sections of the ICPC Act, including sections 2, 13, 14, 15 and 16 vis-a-vis the Criminal Code, the Penal Code and even the repealed Corrupt Practices Decree 1975 and said that the essential ingredient of corruption is the asking for or the receiving of property, money or other benefit or the promise or the giving of it as gratification for the performance of or forbearance to perform the functions of an office or position in abuse or perversion of such office or position. He went further in his examination of the criminal content of corruption and submitted that the term corrupt practices and abuse of power in section 15(5) of the Constitution is used in the sense defined above and does not embrace fraud and offences related thereto; accordingly Item 60(a) of the Exclusive Legislative List does not empower the National Assembly to legislate with respect to fraud and related offences. The learned Senior Advocate, these remain, in spite of Item 60(a), matters within exclusive legislative competence of the States as residual matters – except of course, as regards fraud in relation to the property of the Federal Government.
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Dealing with (d) above, learned Senior Advocate produced the ipsissima verba of the subsection and cited the New Webster’s Dictionary definition of “to conform” as “to bring into correspondence, to comply with requirements”. Counsel then submitted that the court lacks the jurisdiction to embark upon whether the ICPC Act is in conformity with the enforcement of the Fundamental Objectives and Directive Principles of State Policy. He submitted that this court therefore erred in law when in the lead judgment in the Ondo State case it said at page 35:
“The ICPC is by the provisions of Item 60(a) to promote and enforce the observance of the Fundamental Objectives and Directive Principles of State Policy as contained under Chapter II of the Constitution. The question is how can the ICPC enforce the observance? Is it to use force? The ICPC cannot do either of these because the use of force or coercion in enforcing the observance will require legislation. The ICPC has no power to legislate. Only the National Assembly can legislate”.
Learned Senior Advocate contended that what the court said in effect is that the Act is in conformity with, is authorised by, or complies with the duty laid on the National Assembly to ‘abolish all corrupt practices and abuse of power”. To counsel, this court is without jurisdiction to do that in view of section 6(6)(c) of the Constitution.
Dealing with (e) above, it was the submission of learned Senior Advocate that the reliance placed by this court in the Ondo State case on Item 67 of the Exclusive Legislative List seems to be misplaced. Quoting what this court said in the leading judgment at pages 33 and 34 of the brief, counsel submitted that Item 67 has nothing to do with the matter. To learned Senior Advocate, the item only empowers the National Assembly to make law with respect to any matter other than those listed as Items 1 to 66 in the List on which exclusive power to make law is granted to the National Assembly in the body of the Constitution.
It was the argument of learned Senior Advocate that there is no provision in the body of the Constitution granting to the National Assembly power to “legislate against corruption and abuse of office”, unless it be section 15(5). But if section 15(5), assuming it to be a grant of power is embraced in Item 67, then, the National Assembly’s power to “legislate against corruption and abuse of power” will be exclusive, not concurrent. The reliance on Item 67 in the passage quoted seems entirely misconceived, learned Senior Advocate contended.
Let me pause here and deal briefly with Learned Senior Advocate’s reference to the repealed Corrupt Practices Decree, 1975. It is wrong in law to refer to a repealed law in the way learned Senior Advocate did. A repealed law no more has legal life as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law as learned Senior Advocate did. I shall not deal with the Corrupt Practices Decree, 1975 in this judgment. I have enough in the ICPC Act to determine the fortunes of the reference before this court.
Taking Issue No. 6, learned Senior Advocate submitted without mincing words that the ICPC Act is unethical and void for uncertainty. Referring to the definition of corruption in section 2 of the Act to include “bribery, fraud and other related offences”, learned Senior Advocate argued that no one can say with certainty what offences are related to fraud. Are forgery and impersonation, for example, not related to fraud, counsel asked rhetorically.
Learned Senior Advocate submitted on Issue No. 7 that the good and bad provisions of the Act are so interwoven as to make it impracticable to severe one from the other. He urged the court to allow the appeal.
Learned Senior Advocate urged the court to answer the two questions referred to it in the negative for the following reasons:
“1. Because the provisions contained in the Corrupt Practices and Other Related Offences Act 2000 (hereinafter referred to as “the Act”) is (sic) outside the Legislative competence of the National Assembly.
Because the enactment of the said Act is not in conformity with the principles governing the Constitutional validity of Governmental acts in a Federal system of government.
Because the said Act impedes or interferes with the management of the affairs of a State Government by the Federal Government or its agency.
4: Because the entire Chapter on Fundamental Objectives and Directive Principles of State Policy (particularly Section 15(5) thereof) is not a grant of legislative, executive or judicial powers to any of the organs of government under the Constitution.
Because the said Act is ultra vires the National Assembly under Section 4 of the 1999 Constitution.
Because the said Act is unconstitutional for uncertainty.
Because the bad provisions of the said Act cannot be severed and the entire Act is accordingly unconstitutional and void.”
Learned Counsel for the complainant/appellant (a fairly curious name of a party in the circumstances of this appeal), Mrs. C. I. Onuogu, Assistant Director, Federal Ministry of Justice, started in her brief with an examination of the powers of the National Assembly under the 1999 Constitution. She cited sections 4, 14 and 15 of the Constitution, Item 60(a) of the Exclusive Legislative List, and the case of Egbe V. Alhaji (1990) 1 NWLR (Pt. 128) 581.
Dealing with Item 60(a), learned Assistant Director submitted that the National Assembly has the power to make laws that will establish and regulate authorities for the Federation or any part thereof that will promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in the Constitution. She relied on Chambers 21st Century Dictionary, Revised Edition definition of “establish”, “regulate”, “authorities”, “provide” and “enforce” at pages 448, 1174, 86, 1109 and 435, respectively.
It was the submission of learned counsel that the National Assembly enacted the ICPC Act in virtue of the powers conferred on it by Item 60(a) of the Exclusive Legislative List and section 15(5) of the Constitution. She disagreed with learned Senior Advocate for the appellant that section 15(5) being a social ideal cannot be achieved by any sensible person or relied upon by a single once for all legislative, executive or judicial action. To learned counsel, section 15(5) when read along with the provisions of item 60(a) of the Exclusive Legislative List shows that there is a strong political will on the part of the State to achieve this ideal by abolishing all corrupt practices and abuse of office.
Reacting to the submission of learned Senior Advocate that the authority mentioned in Item 60(a) has no business to direct its activities towards individuals or persons who are not acting for or on behalf of any government organ or who are not exercising governmental powers under the Constitution, learned Assistant Director pointed out that the Fundamental Objectives and Directive Principles of State Policy is part of the 1999 Constitution and it applies to every citizen of this country. She cited sections 17(2) and 24 of the Constitution and the case of Egbe V. Alhaji (supra).
It was the submission of learned counsel that it is the clear intention of the Constitution to protect the entire Nigerian public from corrupt practices and abuse of power. To say that the protection does not apply where the perpetrators of corruption are private individuals is tantamount to reading into the Constitution an exception which it has not expressed, learned counsel reasoned. She cited once again Egbe V. Alhaji (supra) and section 6(6)(c) of the Constitution. Conceding that ordinarily the provisions of Chapter II do not give rise to legally enforceable rights and obligations, the use of the expression “except as otherwise provided by this Constitution”, means that the judicial powers provided for in the Constitution shall extend to the matters in the Chapter when appropriate legislation is passed in accordance with the relevant provisions of the Constitution for their enforcement, counsel argued.
Counsel submitted that the provisions of section 4(2) and (3) of the Constitution when read in conjunction with Articles(sic) 60(a) and 68 of the Exclusive Legislative List have clearly satisfied the conditions precedent in section 6(6)(c) of the Constitution for the justiciability of the Fundamental Objectives and Directive Principles to the effect that the State shall abolish corrupt practices and abuse of power. This conclusion, learned counsel contended, becomes more imperative since there is no allegation that the constitutionally stipulated modes of exercising legislative powers by the National Assembly under section 58 of the Constitution have not been complied with. She urged the court to hold that the combined effect of sections 4(2), 6(6)(c), 15(5) of the Constitution, Items 60(a) and 68 of the Exclusive Legislative List is to empower the National Assembly to enact the Corrupt Practices And Other Related Offences Act, 2000.
On Item 67 of the Exclusive Legislative List, learned Assistant Director submitted that the item gives a general power to the National Assembly to legislate on matters which are not specifically itemised in the Exclusive Legislative List but which are provided for in the Constitution. Without Item 60(a), the National Assembly would still be able to legislate on matters touching on corrupt practices and abuse of power but it would not be able to establish authorities such as the Independent Corrupt Practices And Other Related Offences Commission, learned counsel maintained.
Learned counsel submitted that the National Assembly has power to enact laws that create offences. She cited sections 4(a), 286(1)(b) and (2), and Item 68 of the Exclusive Legislative List in the Second Schedule to the Constitution. Interpreting section 15(5) of the Constitution, learned counsel submitted that the phrase ‘enforce the observance” shows that there must be a penalty for non-observance and that there cannot be any penalty if there is no offence created.
SC.316/2001
