Attorney General Of The Federation & Ors V. Alhaji Atiku Abubakar (2007)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This is an Appeal against the decision of A.I. Chikere, J. of the Federal High Court, Abuja Division, delivered on the 20th December 2006.

The Respondent in this Appeal, Alhaji Atiku Abubakar, as Plaintiff before the trial Court, instituted an action by way of an Amended Originating Summons against the Appellants, Attorney-General of the Federation, Code of Conduct Bureau, and Code of Conduct Tribunal as Defendants, seeking for the determination of the following questions: ,,

“1. whether the Code of Conduct Tribunal, established by the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999, has the power or jurisdiction to hear and determine complaint against the Plaintiff for non- compliance with, or breach of, the provisions of the Code of Conduct except on a reference to it by the Code of Conduct Bureau, established by section 153(1) of the Constitution, where in the opinion of the Bureau after it has investigated such complaint, reference to the tribunal is “appropriate” in accordance with paragraph 3 of the Third Schedule to the constitution, and whether Charge No. CCT/NCA/ABJ/06 dated 22/9/06 and filed in the tribunal by the Federal Republic of Nigeria, as Complainant, is not null and void for inconsistency with the Constitution.

2. whether having regard to the provisions of sections 142(1) and (2) and 08 of the Constitution of the Federal Republic of Nigeria 1999, the Plaintiff being a serving Vice President of the Federal Republic of Nigeria, duly elected and sworn in pursuance of the said Constitution can have any civil or criminal proceedings including that commenced by filling a charge before the Code of Conduct Bureau, established in the Fifth Schedule to the Constitution, instituted against him, during the tenure of his office.
3. If question (2) above is determined in favour of the plaintiff whether the Charge No. CCT/NC/ABJ/06 as filed before the Code of Conduct Tribunal dated 22/9/06 containing 18 counts is not so filed in contravention of the provisions of Sections 142(1) and (2) and 308 of the Federal Republic of Nigeria 1999.
4. Whether, if question (2) and (3) are determined against the plaintiff, the Code of Conduct Tribunal has the competence under the constitution to try and convict him of any criminal offences, including the criminal offences specified in Charge Bureau and Tribunal Act Cap 56 Laws of the Federation of Nigeria 1990, is not null and void for inconsistency with the Constitution, insofar as it purports to established by the Constitution, with powers or functions as there provided, as well as to prescribe anew their powers to try and convict the plaintiff of the criminal offences charged against him.”

The Plaintiff also sought the following reliefs:

“i. A DECLARATION that the 1st Defendant herein cannot initiate, institute, maintain or continue any civil or criminal proceedings before the Code of Conduct Tribunal against the Plaintiff during the tenure of his office, having regard to paragraph 3 of the Third Schedule to the Constitution.

ii. A DECLARATION that the Defendants herein cannot institute, commence or sustain any civil or criminal proceedings against the Plaintiff during the tenure of his office, by virtue of Sections 142(1) and (2) and 308 of the Constitution of the Federal Republic of Nigeria 1999.

iii. A DECLARATION that charge No. CCT/NC/ABJ/06 and the summons attached thereto and by the 1st Defendant filed at the Code of Conduct tribunal dated 22/9/06 and containing 18 counts contravenes the provisions of Section 142(1) and (2) and 308 of the Constitution of the Federal Republic of Nigeria 1999 and to that extent, is unconstitutional, null, void and of no effect whatsoever.

iv. A DECLARATION that, apart altogether from the immunity from civil or criminal proceedings conferred on the plaintiff by section 308 of the Constitution to try and/or convict him of any criminal offences specified in Charge No. CC/NC/ABJ/06, and that the provisions of the Code of Conduct Bureau and Tribunal Act Cap 56 Laws of the Federation of Nigeria 1999, establishing the said Bureau and Tribunal, prescribing their powers or functions, and empowering the Tribunal to try and/or convict the plaintiff of the criminal offences so charged against him are unconstitutional, null and void.

v. An order setting aside the said Charge No. CCT/NC/ABJ/06 and the summons emanating therefrom.

vi. An order of perpetual injunction restraining the Defendants from instituting, commencing, or sustaining any civil or criminal action against the plaintiff during the period of his tenure of office.”

The facts of the case as gathered from the records of Appeal are that the Respondent is the Vice President of the Federal Republic of Nigeria.

He assumed the office for the second term after his political party won the 2003 General Elections.

The 2nd Appellant investigated certain allegations leveled against the Respondent and the 1st Appellant proffered 18 counts charge against him before the Code sheet and summons on him, he filed a Suit at the Federal High Court, Abuja challenging the competence of the 3rd Appellant to try him on the ground that he is immune from prosecution.

The Appellant as Defendants upon being served with the Originating processes filed a Notice of preliminary objection and a Counter-affidavit to the Amended Originating Summons.

The trial Court took both the substantive matter and the preliminary objection together and ordered written addresses to be filed. After both parties had adopted their written addresses, the learned trial Judge delivered his Judgment dismissing the Appellants’ Preliminary objection and granting all the Reliefs sought by the Respondent in his Amended Originating Summons, he further held that the immunity of the Respondent under Section 308 of the 1999 Constitution extends to proceedings before the 3rd Appellant.

It is against the Judgment that the Appellants have now appealed to this Court vide their Notice of appeal dated 31st December 2006 containing seven grounds of appeal.

The Appellants’ written brief dated 8/2/2007 were filed on 9/2/2007.

A reply to the Respondent’s brief was filed on 23/3/2007 and deemed as properly filed on 26/3/2007. Learned Counsel for the Appellants Chief Afe Babalola SAN adopted both briefs.

The Appellants formulated four Issues for determination and they read thus:-

“1. Whether or not the Respondent (The Vice President) is bound by the Code of Conduct enshrined in the Constitution of the Federal Republic of Nigeria 1999 regardless of Section 308 of the said Constitution? (Groumd1)

2. Whether the learned trial Judge was not wrong to have assumed jurisdiction over this Suit having regard to the status of the 3rd Appellant? (Ground 1)
3. Whether the Respondent can completely institute this action having regard to his status as the Vice President of Nigeria? (Ground 2)
4. Whether or not the Judgment of the learned trial Judge was not perverse having regarded to:

(a) The failure to consider the evidence before him;

(b) The wholesale adoption at the Judgment of Adah, J. without reference to the fact and the issues in both cases;

(c) The failure to consider the address of the Appellant counsel and the cases cited; and

(d) By his failure to identify and resolve the issues raised by the appellant. (Ground 5).”

The Respondent’s brief of argument dated 16/3/2007 was filed on 19/3/2007 and deemed as properly filed on 26/3/2007. Two Issues were formulated for determination in the Appeal, thus:

“i. Whether the Respondent is precluded from initiating this action to challenge his being arraigned before the Code of Conduct Tribunal for criminal charges simply because he occupies the position of Vice President of Nigeria – Ground 2.

ii. Having regard to the clear and unambiguous provisions of Section 308 of the 1999 Constitution, whether or not the learned trial Judge was not right to have acceded to the Respondent’s reliefs before her- Grounds 1,3,4,5,6 and 7.”

At the hearing of this appeal learned Counsel for the Appellant Chief Afe Babalola SAN said they are adopting the four issues they formulated for determination of the Appeal.

Learned Counsel for the Appellants contended that the two issues formulated by the Respondent did not take into account other grounds of the Appeal and submitted that the Respondent had abandoned those areas of the Appellants’ brief and that the Appellants are entitled to Judgment. He emphasized the special nature of the Code of Conduct Tribunal enshrined in the 1999 Constitution of Nigeria and maintained that the Code of Conduct Tribunal is a Special Specie, a Sui Generis.

Learned Counsel for the Appellants argued that what ignited the controversy before the trial Court was the filing of a charge containing 18 counts by the Attorney-General before the Code of Conduct Tribunal. He argued that the charges are breaches of some paragraphs of the Code of Conduct Act including inter alia failure to declare assets by the Respondent. He maintained that all the counts deal with allegations arising from Sections 13, 15, 7 and 5 of the Code of Conduct Act. Learned Counsel argued that they are not charges in respect of criminal offences under the Criminal Code or the Penal Code. He maintained that the Judgment of the trial Court did not refer to these charges in its attempt at interpreting the law.

Chief Afe Babalola learned Senior Counsel for the Appellant in support of his argument that only the Code of Conduct Tribunal has powers to the exclusion of anybody to inquire into breaches in the Code of Conduct Act cited the cases of: Anago-Amauze v. Onwudiwe (1985) 6 NCLR 620 at 635; Dr. Ifeoma Ogbuagu v. Dr. Geoffrev Ogbuagu (1981) 2 NCLR 680; Nabaruma v. Offodile (2004) 3 NWLLR Pt. 891 page 599 at 623; Umanah v. Attah (2006) 17 NWLR Pt. 1009 page 503 at 526.

Learned Counsel for the Appellants submitted that the 2nd declaration sought by the Respondent ought to have been struck out.

Learned Senior Counsel for the Appellants argued that the Code of Conduct Tribunal and any proceedings before it are not criminal at all. He submitted that the Code of Conduct Tribunal is not a Criminal Court and that the matter before it is not a criminal matter. Learned Counsel gave four reasons to buttress his submission. The Court was invited to:

1. The provision of Section 2 of the Code of Conduct Tribunal Act Cap C.15 which states that the aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and acceptability.
2. The type of punishment that the Code of Conducts Tribunal can inflict as provided for under Section 23(2) of the Code of Conduct Bureau and Tribunal Act reads thus:-

(a) vacation of office or any elective or nominated office, as the case may be.

(b) disqualification from holding any public office (whether elective or not) for a period not exceeding ten years, and (c) seizure and forfeiture to the State any property acquired in abuse or corruption of office.

3. The exclusion clause states that the Code of Conduct Tribunal is not a criminal court. Learned Senior Counsel made particular reference to Section 23(3), (6) & (7) of the Code of Conduct Bureau and Tribunal Act Cap C.15.

He contended that Section 23(3) shows that the offences under the Act are not criminal because where the breach of Code of Conduct is also a criminal offence under the Criminal Code or Penal Code the matter goes before the Criminal Court.

Learned Senior Counsel maintained that Section 23(6) shows that the Code of Conduct Tribunal is not a Court of law but a Special Tribunal.

He argued that Section 23(7) put finality to the fact that the Code of Conduct Tribunal is not a criminal Court, when it states that Prerogative of Mercy does not apply to any punishment imposed under the said Sections, whereas Prerogative of Mercy applies to all courts with criminal jurisdiction.

Learned Senior Counsel for the Appellant argued that the learned trial judge failed to consider these factors.

4. The last reason given by the learned Counsel for the Appellants to demonstrate that the Code of Conduct Tribunal and any proceedings before it is not criminal at all is the fact that the Code of Conduct Tribunal deals with issues of public officers. He argued that the Code of Conduct Act applies to only selected groups of people, such us civil servants and not every group of persons.

Learned Senior Counsel referred the Court to Section 140 of the Constitution of Nigeria 1999 and submitted that Section 308 which grants immunity to the President and Vice President of the Federal Republic of Nigeria, Governors and Deputy Governors is not absolute.

Learned Senior Counsel referred the Court to Section 140(1) and (2) of the Constitution of Nigeria 1999 as to when the President and Vice President are entitled to start performing the duties of their office. He maintained that they must declare their assets and liabilities take and subscribe to the Oath of Allegiance and Oath of office prescribed in the Seventh Schedule to the Constitution.

Learned Counsel for the Appellants referred the Court to Section 15 of the Code of Conduct Act which stipulates that a public officer must declare all his assets and liabilities and those of his spouse and children under the age of fifteen years.

Learned Senior Counsel for the Appellants contended that the charge before the trial Court is that the Respondent had not declared his assets. He submitted that a President or Vice President who has not declared his assets is not a President or Vice President properly so called.

Chief Afe Babalola, Senior Advocate of Nigeria submitted that the totality of his submission has nothing to do with a criminal trial in relation to Section 308 of the 1999 Constitution of Nigeria. He maintained that the said Section 308 does not apply to persons being prosecuted before the Code of Conduct Tribunal. He argued that the Respondents cannot claim immunity under the said section. He contended that to rule otherwise is to make the Code of Conduct Act and the Tribunal impotent.

Learned Senior Counsel argued that once the Respondent leaves office, he cannot be tried under the Code of Conduct Tribunal He concluded his submission on issues 1,2, and 3 by saying that the trial must have to be now.

On the 4th issue, learned Counsel submitted that the Judgment is a reproduction of the submission of the Plaintiff’s Counsel as well as a wholesale adoption of the opinion of another Judge without considering the submission of the Defendants/Appellants. Learned Senior Counsel urged the Court to hold that the Judgment is not an interpretative Judgment, in that it has failed to consider the intendment of the law maker, such as the history of the law.

Chief Afe Babalola SAN contended that contrary to the submission of the Respondent, the Code of Conduct Tribunal is not an inferior Tribunal in law and that all the cases relied upon are on Tribunals set up by laws and not Tribunals set up by the Constitution as in this case.

Learned Senior Counsel submitted that since the Respondent is challenging the Jurisdiction of the Tribunal, the proper place to go is that Tribunal. He referred to the case of Umanah v. Attah (2004) 7 N\VLR Pt. 871 page 63 and urged the Court to consider it as relevant to the matter at hand even though the Respondent in his brief said that the examples given by the Appellants are unnecessary excursion.

Learned Senior Counsel further argued that the interpretation of the Constitution by the Court should not be done by reliance on cases of civil action and tort. He maintained that the Court has a duty to do its research where Counsel fails to do it. Learned Counsel for the Appellants referred to the case of Attorney-General Ondo State v. Attorney-General of the Federation (2002) 9 NWLR Pt. 772 page 222 and urged the Court to make use of the research they made.

The Respondent’s brief of argument dated 6/3/2007 and filed on 19/3/2007 was deemed properly filed on 26/3/2007. Chief Wole Olanipekun SAN Learned Counsel for the Respondent in his oral reply to the submission made on behalf of the Appellants to the effect that the Respondent did not reply to all the issues in the Appellants’ brief and that such issues are deemed accepted by the Respondent, Learned Senior Counsel submitted that what the Respondent is required to reply to are material and relevant issues, and cited the case of Adeyemi v. Opeyori

(1976) 9-10 SC. 31 in support.

Learned Counsel for the Respondent maintained that the Respondent’s brief adequately dealt with every matter which in their opinion deals with the Code of Conduct Bureau, He contended that it is the Appellants’ Counsel who failed to respond to the material points raised by the Respondent in those paragraphs.

Learned Counsel for the Respondent further contended that another point they made to which there was no response is dealt with in the case of Abubakar v. Attorney-General of the Federation (2007) 3 NWLR Pt. 1022 page 601 at 629-630 and 648. Learned Senior Counsel submitted that however hollow that Judgment may be as asserted by learned Counsel for the Appellants; this Court is bound by the Judgment under the doctrine of Stare decisis.

Chief Wole Olanipekun SAN maintained that this matter revolves round the Interpretation of Section 308 of the 1999 Constitution of Nigeria and that the Section is restricted to the tenure of that person at the particular period.

Learned Senior Counsel argued that the word “otherwise” in Section 308(b) of the Constitution of Nigeria 1999 included Tribunals. He further argued that the said Section prohibits the issuance and service of processes on the holders of the offices mentioned under Section 308 of the Constitution.

Chief Wole Olanipekun SAN submitted that there is no time bar against criminal prosecution. He drew the Court’s attention to paragraph 13 of the Fifth Schedule to the 1999 Constitution of Nigeria. He maintained that the Code of Conduct Tribunal applies to both serving and retired officers. Learned Counsel again referred the Court to paragraphs 4(1) and (5) of the said Schedule.

He also referred the Court to page 9 of the record of Appeal containing FORM 2 titled “SUMMONS TO ACCUSED”, and submitted that it is a violation of the provisions of Section 308 of the 1999 Constitution of Nigeria.

Learned Counsel also invited the Court to page 10 of the record containing the Charge Sheet on which the Respondent was referred to as an Accused.

Chief Wole Olanipekun SAN referred the Court to the definition of the word Accused in the Blacks law Dictionary, which states that he is a person who has been charged with a crime.

Learned Counsel for the Respondent submitted that the proceedings before the Code of Conduct Tribunal are purely criminal. He also referred the Court to Count 6 in the Charge Sheet at page 12 of the record of Appeal and cited the case of Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 9 NWLR Pt. 772 in which bribery and corruption were defined as criminal offences.

Learned Senior Counsel referred the Court to paragraph 18 of the Fifth Schedule to the Constitution of Nigeria 1999 on the powers of the Code of Conduct Tribunal to impose punishment. He submitted that the Counts contained in the Charge Sheet on pages 9 – 16 of the record of Appeal arc criminal offences and the penalties are those attendant to criminal offences. The attention of the Court was drawn to paragraph 18(7) of the Fifth Schedule to the Constitution which states that the provision relating to prerogative of mercy shall not apply to any punishment imposed by the Code of Conduct Tribunal. Learned Counsel said that this is a more serious sanction for there is no pardon.

Chief Wole Olanipekun SAN submitted that Section 308 of the Constitution is absolute and does not call for any Interpretation contrary to what the Constitution has said. He posed the question whether the Vice President who enjoys the same immunity with the President can be put in a dock before the Code of Conduct Tribunal.

Learned Counsel for the Respondent submitted that the purpose of Section 308 is for the holder of the office mentioned to have an uninterrupted tenure of office, so that he can attend to his official functions.

He further submitted that the fact that the Code of Conduct Tribunal is an inferior court calls for no argument. He referred the Court to Section 6(6) of the Constitution of Nigeria 1999 and maintained that the Code of Conduct Tribunal remains a Tribunal inferior to the High Court and subject to the supervisory jurisdiction of the High Court. He referred the Court to the case of Miscellaneous Offences Tribunal v. Okoroafor (2007) 18 NWLR Pt. 745 page 295 at 351 and argued that even during the Military Regimes the Courts are superior to the Tribunals.

Learned Counsel for the Respondent submitted that, assuming but not acceding, the proceedings before the Code of Conduct Tribunal are not criminal, the Constitution he submitted has said that no proceedings can be commenced against the Respondent.

Learned Senior Counsel further submitted that both the Code of Conduct Tribunal and the trial Court are within the body of the Constitution as the Code of Conduct Tribunal is established under the Fifth Schedule to the Constitution whilst the trial Court is created under Section 6(5) of the Constitution and that even if there is a conflict assuming without conceding, the provisions of Section 308 of the Constitution will prevail On the submission of learned counsel for the Appellants that the judicial immunity under Section 308 is not absolute, learned Counsel for the Respondent said such a submission runs against the grains of the Constitution. He argued that the fact that the Respondent is being investigated cannot rob him of the immunity under the Constitution.

Chief Wole Olanipekun SAN distinguished the present case from the cases of AD v. Fayose (2004) 8NWLR (Pt.876) 639 which he said is sui generis while the case of Unongo v. Atiku (1985) 6NCLR Page 262 at 270 was decided pursuant to the law existing at the time.

Learned Counsel urged the Court to dismiss this Appeal and affirm the Judgment of the trial court which is in accord with reason, logic and industry.

In his reply on point of law, learned Counsel for the Appellants Chief Afe Babalola SAN referred to the case of Hon. Justice Kalu Anya v. Attorney-General of Borno State (1984) SNCLR page 225 at 228 and submitted that the High Court has no business as to whether the Code of Conduct Tribunal has jurisdiction to entertain matters of code of conduct He contended that the argument that the Code of Conduct Tribunal like the other Tribunals is subject to the supervision of the High Court is wrong. He argued that the High Court has no supervisory jurisdiction over the decision of the Tribunal Learned Senior Counsel argued that the issue referred to the High Court is not an issue of supervisory Jurisdiction. He submitted that Section 308 is not absolute and cited the case of Dasuki v. Muazu (2002) 16 NWLR Pt. 793 page 319 at 341 where it has been held that the immunity under Section 308 is not absolute.

Learned Senior Counsel submitted that item 19 of the Interpretation Section of the Code of Conduct Act under the Fifth Schedule to the Constitution defines a public officer as a person holding any of the offices specified in Part II of the Schedule.

Learned Senior Counsel argued that once the holder of the office leaves the office he cannot be prosecuted. He contended that the charge does not mean that it is a criminal charge. He argued that code of conduct is only a moral code and that the Court should discountenance the words charge and summons used. He maintained that the charge is being brought under the Code of Conduct Act and not under the Criminal Code.

Chief Afe Babalola SAN submitted that Section 23(3) & (7) of the Code of Conduct Act states that there is a demarcation between charges under the Code of Conduct Tribunal and those under the Criminal Code.

Learned Senior Counsel urged the Court to hold that the charges brought against the Respondent are under the Code of Conduct and not under the Criminal Code. He urged the Court to allow the appeal and set aside the decision of the trial Court.

My Lords, this is the recap of the copious submissions of the learned Counsel for all the parties in this Appeal. After a careful consideration of the submissions, I am of the opinion that the thrust of this Appeal is whether the Respondent, Alhaji Abubakar Atiku, Vice-President of the Federal Republic of Nigeria while in office can be tried by the Code of Conduct Tribunal. This on my part calls for the interpretation of Section 308 of the Constitution of the Federal Republic of Nigeria 1999 on the immunity for certain public office holders under the said Constitution.

It is pertinent to note that Nigeria adopted a Presidential system of Government way back in 1979. The 1999 Constitution like its predecessor of 1979 embodies the supremacy of the constitution. Section 1 of the 1999 Constitution reads:

“(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”

The foregoing Section has been interpreted in Constitutional cases handled by the Courts to mean that all the actions of the government of Nigeria are governed by the Constitution, and it is the Constitution as the organic law of the country that declares in a formal, corporate and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. See A.G. Abia State v. A.G. Federation (2002) 6 NWLR Pt. 763 page 264 (No.2); Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR Pt. 842 page113;

Nafiu Rabiu v. State (1980) 8-11 SC 130: Balewa v. Doherty (1963) 2 SCNLR 155.

A Constitution is an instrument of government under which laws are made and is not a mere Act or law, and the construction which the Court will give to a Constitutional provision must be such that will serve the interest of the Constitution and best carry out its object and purposes and give effect to the intention of the framers.

Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. But their extent and implication may be sought to be interpreted and explained by the Court in cases properly brought before it.

The duty of the Court when interpreting a provision of the Constitution is to read and construe together all the provisions of the Constitution, unless there is a very clear reason that some particular provisions of the Constitution should not be read together. It is also germane to bear in mind the object of the constitution in enacting the provisions contained there in. See

Rabiu v. State (1982) 2 NCLLR 293; Aqua Ltd. v. Ondo State Sports Council (1989) 4 NWLR Pt. 91 page 622;

Tukur v. Government of Gongola State (1989) 4 NWLR Pt. 117 page 517;

Ishola v. Ajiboye (1994) 6 NWLR Pt. 352 pages 5-6; Director SSS v. Agbakoba (999) 3 NWLR Pt. 595 page 314

A.G. Ondo State v. A.G. Federation (2002) 9 NWLR Pt. 772 page 222

This takes us to examining the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria 1999.

Section 308 “(1) Notwithstanding anything to the Contrary in this Constitution, but subject to sub section (2) of this Section-

(a) no civil or criminal proceedings shall be instituted against a person to whom this section applies during his period of office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purpose of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only nominal party.

(3) This section applies to a person holding the office of president or Vice-President, Governor or Deputy Governor; and the reference to the period during which the person holding such office required to perform the function of the office.”

In the interpretation of the provision of the Constitution or any Act, the duty of the Court is to adopt a literal interpretation which means that where the provisions of a Statute are clear and unambiguous they require no resort to any cannon of construction but they must be read in their plain and ordinary words which best give their meaning.

However, where a literal interpretation of the provisions of a Statute will result in absurdity or injustice, the Court may seek internal aid within the body of the Statute itself or external aid from Statutes that are in pari materia with the Statute being construed in order to avoid absurdity or injustice.

Since I am now about to interpret the Constitution, I have to be cautious that being the organic law or ground norm, the provisions thereof must be given a broad and not a narrow interpretation which will do violence to it, and for it to achieve its goal, unless there is something in the rest of the Constitution to indicate that the narrower interpretation will best carry out the object and purpose of the Constitution.

The Court should discountenance frivolity, but should adopt a liberal approach and avoid construing it in a manner that one section would defeat the intent or purpose of another. See Abubakar v. A.G. Federation (2007) 3 NWLR Pt. 1022 page 601; Buhari v. Obasanjo (2005) 2 NWLR Pt. 910 page 241; Awuse v. Odili (2003) 18 NWLR Pt. 851 page 116; Buhari v. Yusuf (2003) 14 NWLLR Pt. 841 page 446; Adisa v. Oyinwola (2000) 10 NWLR Pt. 674 page 116;

Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR Pt. 91 page 622; Alegbe v. Oloyo (1983) 2 SCNLLR 35;

Adewumi v. Military Governor Lagos State (1972) 3 SC 45.

Section 308 of the Constitution of Nigeria 1999 has gone through intense microscopic scrutiny of the Courts and has been subject of interpretation in a number of decided cases.

In Tinubu v. IMB Securities Plc. (2001) H; NWLR Pt. 740 page 670 the Supreme Court held that no civil or criminal proceedings can be initiated or brought against the holder of any of the offices mentioned under Section 308(3) of the Constitution during his tenure.

This Court followed this decision and the mandatory injunction of the Constitution in the cases of Alarmieyeseigha v. Yeiwa (2002) 7 NWLR Pt. 767 page 581 at 601, 957 and held that Section 308 which confers on the Appellant absolute immunity from civil and criminal proceedings can not be invoked to deny him the right of fair hearing when an order sought directly affects him.

In Media Tech (Nig.) Ltd. v. Lam Adesina (2005) 1 NWLR Pt. 908 page 461 at 475 this Court held that the Respondent is shielded from being prosecuted civilly or criminally while still occupying the office of Governor but that the Respondent as Governor, could institute action against any other person or persons in his personal capacity.

In I. C.S. (Nig.) Ltd. v. Balton B.V. (2003) 8 NWLR Pt. 822 page 223 it was held that once one of the parties to the suit belongs to the category of office holders named in Section 308(3), the suit must be struck out.

In Umanah v. Attah (2004) 7 N’VLR Pt. 871 pages 63 at 100 it was held that any charge or indictment against the 1st Respondent while he was the Governor of a State, before or by the Code of Conduct Tribunal; would have been rendered null and void under the provisions of Section 308 of the 1999 Constitution. See also: Ejudra v. Idris (2006) 4 NWLLR Pt. 971 page 538; Alamieyseigha v. Federal Republic of Nigeria (2006) 16 NWLR Pt, 1004 page J.

Gani Fawehinmi v. Inspector-General of Police & Ors. (2002)7 NWLR Pt, 766 page 683.

Learned Counsel for the Appellants submitted that the Code of Conduct is a special Constitutional provision made to regulate the behavioural conduct of public officers.

Proceedings before the Code of Conduct Tribunal he argued are a Special proceeding which cannot be likened to either civil or criminal proceedings.

Learned Counsel maintained that the Tribunal is established for special people to wit – public officers and political office holders listed in Pan II of the Fifth Schedule to the 1999 Constitution. Learned Counsel further argued that the Code of Conduct Tribunal is not a Tribunal that can try any infraction of the Criminal Code and impose penal sanctions. It is established solely to look into allegations of breach of the provisions of the Code of Conduct for public officers made against those classified people, Chief Afe Babalola SAN submitted that Special proceedings before the Code of Conduct Tribunal can be likened to the proceedings before an Election Tribunal which do not qualify as civil or criminal proceedings within the meaning of Section 308. He referred the Court to the cases of

Obi v. Mbakwe (1984) 1 SCNLKR 192; A.D. v. Fayose (2004) 8 NWLR pt. 876 page 639.

Chief Afe Babalola SAN submitted that in so far as the same principles underline the functions of both the Election Tribunal and the Code of Conduct Tribunal, the latter will also constitute an exception to the immunity.

All agencies of Government are organs of initiative whose powers are derived either directly from the Constitution or from Laws enacted thereunder. They therefore stand in relationship to the Constitution as it permits their existence and functions.

The Code of Conduct Bureau is established pursuant to Section 153(1) (a) of the Constitution of Nigeria 1999 while its powers are contained in Part 1 of the Third Schedule to the Constitution.

Paragraph 3 of the Third Schedule part 1 reads thus:

“3. The Bureau shall have power to

(a) receive declarations by public officers made under paragraph 12 of part 1 of the fifth Schedule to this Constitution;

(b) examine the declarations in accordance with the requirements of the Code of Conduct or any law;

(c) retain custody of such declarations and make them available for inspections by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe;

(d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct or any law in relation thereto.

(e) Receive complaints about non-compliance with or breach of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal;

(f) Appoint, promote, dismiss and exercise disciplinary control over the staff of the Code of Conduct Bureau in accordance with the provisions of an Act of the National Assembly enacted in that behalf; and

(g) Carry out such other functions as may be conferred upon it by the National Assembly.”

On the other hand the Code of Conduct Tribunal is established pursuant to paragraph 15(1) of the Fifth Schedule Part 1 to the constitution of the Federal Republic of Nigeria 1999.

The power of the Code of Conduct Tribunal can be found under paragraph 18 of the same schedule and they are hereby reproduced for case of reference:

“18(1) Where the code of conduct Tribunal finds a public officer guilty of contravention of any of the provisions of this Code it shall impose upon that officer any of the punishments specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly.

(2) The punishment which the Code of Conduct Tribunal may impose shall include any of the following-

(a) vacation of office or seat in any legislative house, as the case may be;

(b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and

(c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office.

(3) The sanctions mentioned in sub-paragraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence.

(4) Where the Code of Conduct Tribunal gives a decision as to whether or not a person is guilty of a contravention of any of the provisions of this Code, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the court of Appeal at the instance of any party to the proceedings.

(5) any right of appeal to the Court of Appeal from the decision of the Code of Conduct Tribunal conferred by sub-paragraph (4) hereof shall be exercised in accordance with the provisions of an Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

(6) Nothing in this paragraph shall prejudice the prosecution of a public officer punished under this paragraph or preclude such officer from being prosecuted or punished for an offence in a court of law.

(7) The provisions of this Constitution relating to prerogative of mercy shall not apply to any punishment imposed in accordance with the provisions of this paragraph.”

Jurisdiction of a court or Tribunal whether civil or criminal is not determined by the status of the Court or Tribunal but by the law creating the Court or tribunal and more particularly its practice and procedure.

Before examining the practice and procedure before the Conduct Tribunal, I shall first delve into the definition of a tribunal.

The Blacks Law Dictionary Eight at pages 1544 defines Tribunal as a court or other adjudicating body, the seat, bench, or place where a judge sits.

So in that case the Code of Conduct Tribunal is a Court. It is a Court vested with specific duties by the Constitution. This opinion is supported by paragraph 18 of the Fifth Schedule to the Constitution, which vested on the Code of Conduct Tribunal the powers to arrest, convict, and sentence and impose punishment.

In the administration of justice the features which distinguish a criminal trial proceeding from a civil trial are arrest, arraignment, the charge, plea, conviction, sentence, and prerogative of mercy.

In the instant case, an examination of the powers of the Code of Conduct Tribunal and its trial procedure rules shows the trappings of a criminal trail. The rules of procedure of the Code of Conduct Tribunal are contained in the Third Schedule to the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004.

Paragraphs 1,2,3,4,5,7,9,10,11,17, and 18 of the said Schedule are pertinent and are hereby reproduced as follows:

“THIRD SCHEDULE

(Section 7)

Code of conduct Tribunal Rules of Procedure Commencement and Conduct of Trial, Institution of proceedings

The trial of offences under this Act shall commence by way of an application, supported by II summary of evidence or affidavit to the Tribunal by the prosecutor.

2. Order on an accused to appear

Where, after the perusal of the application and the summary of evidence, affidavit or tiny further evidence in such forms as the Tribunal may consider necessary, the Tribunal is satisfied that any person appears to have committed an offence provided under this Act, it shall cause that person to be brought before the Tribunal on such date and at such time as it may direct.

3. Commencement of trial

(1) When the Tribunal is ready to commence the trial, the accused shall be brought before it and the Tribunal shall read or cause to be read to him the substance of the complaint against him and he shall be asked whether he is guilty of the offence or offences charged.

(2) If the accursed pleads guilty, the plea shall be recorded and he may in the discretion of the Tribunal be convicted thereon.

4. Plea of not guilty or no plea

If the accused pleads not guilty or makes no plea or refuses to plead or if the Tribunal enters a plea of not guilty on behalf of the accused, the Tribunal shall proceed to try the case.

5. Presentation of Case for prosecution

(1) After a plea of not guilty has been taken or no plea has been made, the prosecutor may open the case against the accused, stating shortly by what evidence he intends to prove the guilt of the accused.

(2) The prosecutor shall then examine the witnesses for the prosecution who may be cross-examined by the accused or his counsel and may thereafter be re-examined by the prosecutor.

6. Procedure after presentation of evidence by the prosecutor….
7. Defence

When the Tribunal calls upon the accused to enter upon his defence the accused or his counsel may open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution, and the accused may then give evidence on his own behalf, examine his witnesses, if any, and, after their cross-examination and re-examination, if any, the accused or his counsel may sum up his case.

8. Rights of prosecutor to reply….
9. Consideration of findings

When the case for the defence and the reply of the prosecution, if any, are concluded and the Tribunal does not desire to put any further question to the accused, the Tribunal does not desire to put any further question to the accused, the Tribunal shall retire or adjourn to consider its findings.

(9) Consideration of findings

When the case for the defence and the reply of the prosecution, if any, are concluded and the Tribunal does not desire to put any further question to the accused, the Tribunal shall retire or adjourn to consider its findings.

10 Announcement of findings

After the Tribunal has made its findings, the Chairman shall announce such findings and, where the accused is found guilty, it shall impose the appropriate penalty prescribed in this Act, and issue an appropriate order accordingly.

11. Recommendation as to mercy

The Tribunal may, in addition to its sentence, make an appropriate recommendation as to mercy but in any such case shall give reasons for such recommendation.

12. Notes of evidence to be taken….
13. Issues of summons for witness….
14. Warrant of witness after summons….
15. Local inspections……
16. Forms….
17. Application of Criminal Procedure Act or Code

Where these Rules contain no provision in respect of any matter relating to or connected with the trial of offences under this Act, the provisions of the Criminal Procedure Code shall, with such modification as the circumstances may require apply in respect of such matter o the same existent as they apply to the trial of offence generally.

18. Interpretation

In these Rules, “the prosecutor” means the Attorney-General of the Federation or tiny other person authorized by him pursuant to section 24 of this Act to conduct the prosecution of an offence before the Tribunal or to assist therein.”

Tribunal Form 2 is titled Summons to accuse while Form 3 is Warrant for apprehension of accused. At page 10 of the Records of Appeal is an 18 Count charge against the Respondent. The Complainant in the Charge is the Federal Republic of Nigeria, while the Respondent is the Accused. I am satisfied from the foregoing that the proceedings against the Respondent Alhaji Atiku Abubakar Vice-President Federal Republic of Nigeria before the Code of Conduct Tribunal is purely a criminal proceeding and I so hold.

Now having settled the issue whether a trial before the Code of Conduct Tribunal is civil or criminal which I have said is criminal, I will now examine the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria 1999 which had been earlier reproduced in this Judgment.

Section 308(1) of the Constitution starts with the words “notwithstanding anything to the contrary in this Constitution.” The word “NOTWITHSTANDING” has been defined by the Blacks’ Law

Dictionary 8th Edition page 1094 to mean Despite; in spite of; while according to the Oxford Advanced Learner’s Dictionary 6th Edition at page 799 “Notwithstanding” means – without being affected by; in spite of.

The word “Notwithstanding” has been held in the case of Messin v. Nwachukwu (1999) 6 NWLR Pt. 605 page 154 at 167 to mean ‘In spite of.

I agree with the submission of learned Counsel to the Respondent that Notwithstanding also means despite any other thing, regardless of any other provision or irrespective of any other clause or provision.

The word “Notwithstanding” when used in a statute is meant to exclude imaginary or impending effect of any other provision of the statute.

In NDIC v. Okem Enterprises Ltd. (2004) 10 NWLR Pt. 880 pages 107 at 182-183, the Supreme Court held:

“When the word “Notwithstanding” is used in a section of a statute, it is meant to exclude imaginary or impending effect of any other provision of the statute or other subordinate legislation so that the said section fulfill itself. It follows that as used in Section 25(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said Section.”

Where the word “Notwithstanding” is used in any clause that clause should be construed as a term of exclusion. See

Total (Nig.) Plc. v. Makoh (2002) 9 NWLR Pt. 773 page 492 at 519;

Kotoye v. Saraki (1994) 7 NWLR Pt. 357 page 414 at 478.

I am of the opinion that restriction on legal proceedings whether civil or criminal against any person to whom Section 308 of the 1999 Constitution applies, is absolute during his period in office. Such a person shall not be arrested or imprisoned either in pursuance of the process of any court or otherwise and no process of any Court requiring or compelling his appearance shall be applied for or issued.

The only exception to the prohibition against prosecution is where a civil proceeding is instituted against the person to whom the section applies in his official capacity or where the proceedings are against him as a nominal party.

The immunity under Section 308 of the Constitution prohibits every civil and criminal proceeding against the President, Vice-President, Governor and Deputy Governor notwithstanding and/or regardless of the Court where the prosecution takes place, whether it is before a court of law established by Section 6(5) of the Constitution or a Tribunal established by Paragrapl1 15(1) of the Fifth Schedule to the Constitution, with the features of a Court and performing the duties of a Court.

On the submission of the learned Counsel for the Appellants that the trial court had no jurisdiction/competence to entertain the suit which was filed by the Respondent in his personal name in spite of the notorious fact that he is still the Vice President of the country, I hasten to say that the claim of the Respondent before the trial court concerns his rights to Personal liberty and fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999.

The operative word under Section 308(1) (a) of the Constitution of the Federal Republic of Nigeria 1999, is the word “against”. The word “against” provides a shield or immunity from the institution of any civil or criminal proceedings against the holders of the offices of President, Vice-President, Governors, or Deputy- Governors while their tenure subsists.

The provisions of Section 308(1) (a) of the Constitution does not deprive the holders of the offices mentioned under Section 308(3) of their rights to Personal liberty and fair hearing under the Constitution. See: Media Tech (Nig.) Ltd. v. Adesina (supra)

Alamieyseigha v. Yeiwa (supra)

The claim of the Respondent is for declaration or injunction affecting the decision of the Agencies of the Federal Government and by virtue of the provisions of Section 251(1) (r) of the Constitution and it is only the Federal High Court that has jurisdiction to entertain such matters.

The proviso to Section 251(1) of the Constitution states that a person shall not be prevented from seeking redress against the Federal Government or any of its Agencies in an action for damages, injunctions or specific performance where the action is based on any enactment, Law or equity.

I am of the opinion that the Respondent Alhaji Atiku Abubakar, Vice-President of the Federal Republic of Nigeria could institute an action against any person in his personal capacity and I so hold. The relevant Sections cover proceedings at the High Court and the Appellate Courts.

One of the basic principles of interpretation of all Constitutions and statutes is that the lawmaker will not be presumed to have given a right in one section and taken it in another. In the instant case, it will not be presumed that the makers of the 1999 Constitution intended the immunity provided to certain categories of Public Officers in Section 308 of the Constitution during the tenure of their office to be taken away by the Code of Conduct Bureau created under Section 153 of the Constitution. See:

Abubakar v. A.G. Federation (2007) 3 NWLR Pt. 1022 page 601 at pp. 646 & 648;

Osadebay v. A.G. Bendel State (991) 1 NWLR Pt. 169page 525.

In the final analysis I hold that the Code of Conduct Tribunal has no powers or jurisdiction to hear and determine allegations of contravention of any of the provisions of the Code of Conduct Bureau and Tribunal Act or as contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999, against a President, Vice-President, Governor or Deputy Governor, while his tenure office subsists.

This Appeal lacks merit and it is hereby dismissed. The decision of the trial Court is hereby affirmed. There shall be no order as to costs.

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Other Citations: (2007)LCN/2306(CA)