Dr. Olubukola Abubakar Saraki V Federal Republic Of Nigeria (2016)
LAWGLOBAL HUB Lead Judgment Report
WALTER SANUEL NKANU ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Holden at Abuja in appeal No. CA/A/551/2015 delivered on the 30th day of October, 2015 in which the could dismissed the appeal of appellant against the ruling of the Code of Conduct Tribunal in charge No CCT/ABJ/01/2015 delivered on the 18th day of September, 2015 in which the tribunal held that the criminal charge preferred against appellant was competent despite the absence of a sitting Attorney-General of the Federation and issued a bench warrant against appellant for his failure to appear before the tribunal and answer/plead to the charges preferred against him.
The facts of the case, as can be gathered from the record include the following:
Appellant was a two-term Governor of Kwara State, between May, 2003 and May, 2011. While in the said office appellant filed, as required by law, four asset declaration forms and submitted same to the Code of Conduct Bureau.
These forms were duly investigated by the Bureau and other relevant agencies of government as a result of which it was allegedly found that appellant allegedly corruptly acquired many properties while in office as Governor of Kwara State but failed to declare some of them in the said forms earlier filled and submitted to the relevant authorities. It was also allegedly discovered that appellant made an anticipatory declaration of assets upon his assumption of office as Governor of Kwara State which he acquired later. It was also alleged that appellant sent money abroad for the purchase of properties in London and that he maintained an account outside Nigeria while serving as the said Kwara State Governor. It was the discovery of these alleged violations of the Code of Conduct for Public Officers that the Code of Conduct Bureau initiated a criminal proceeding against appellant before the Code of Conduct Tribunal, Hold at Abuja.
Upon serving of the summons on him, appellant filed a motion dated 17th September, 2015 before the Code of Conduct Tribunal Challenging the competence of charge No.CCT/ABJ/01/2015 and a suit each before the Federal High Court Holden at Abuja and Lagos in which he also challenged the validity of the criminal proceedings initiated against him at the Code of Conduct Tribunal.
In the course of the proceedings in the tribunal on the 18th day of September. 2015 appellant contended that since there was no sitting Attorney-General of the Federation before of at the time charge No CCT/ABJ/01/2015 was filed before the tribunal the said charge was incompetent and that appellant would not appear before the said tribunal etc.
The tribunal overruled the objection of appellant and issued a bench warrant against appellant and adjourned the case to 19th September 2015 to enable appellant appear and take his plea but appellant did not so appear, resulting in the tribunal renewing its order or bench warrant and adjourned the matter to 22nd September 2015.
On 22nd September, 2015 appellant appeared before the tribunal in person as a result of which the charges preferred against ham were read to him and he pleaded not guilty thereto as a result of which the warrant of arrest/bench warrant issued against him was revoked, and appellant granted bail on self recognizance and the matter adjourned to the 21st, 22nd and 23rd of October, 2015 for hearing. It is important to note that appellant voluntarily appeared before the tribunal on the 22nd day of September, 20l5. His appearance was not on the execution of the warrant of arrest issued by the tribunal.
However, on the 2nd day of October, 2015, appellant filed an appeal against the ruling of the tribunal of 18th September, 2015 before the Court of Appeal in which the following issues were raised for the determination of the appeal.
- Whether the Code of Conduct Tribunal was properly constituted when it sat on 18th September, 2015 with only two members.
- Whether the Code of Conduct Tribunal was competent to issue bench warrant when it was not a court of criminal jurisdiction.
- Whether the charge preferred against appellant before the Code of Conduct Tribunal when there was no sitting Attorney-General of the Federation was competent.
- Whether the service on appellant of the summons for the proceedings of the 18th of September, 2015 was proper in law, and,
- Whether the Code of Conduct Tribunal has the vires to ignore an order of the Federal High Court barring it from sitting or staying its further proceedings in the matter.
As stated earlier in this judgment, the Court of Appeal dismissed the appeal which resulted in the present further appeal before this Court the issues for the determination of which have been formulated by leading Senior Counsel for appellant, J.B. DAUDU, SAN in the appellants brief filed on 11/11.2015 as follows:-
”1. Whether the majority decision of the Court of Appeal, Abuja Division was right in the interpretation of the Constitution when it held that the Code of Conduct Tribunal was properly constituted in law when it sat on 18/09/2015 with just the Chairman and one (1) other member in contravention of the provisions of paragraph 15(1) of the 5th schedule of the 1999 constitution as to exercise the powers and jurisdiction vested by the 1999 Constitution and if the answer is in the negative, whether the charge and the entire proceedings inclusive of the Ruling in issue is not null and avoid and of no consequence (ISSUE NO 1) (Grounds 1 and 2).
- Whether the majority decision was right when it held that the Code of Conduct Tribunal is a Court of Limited Criminal jurisdiction competent and empowered to issue a Bench Warrant against the appellant in the event of his absence from the proceedings of the Tribunal (ISSUE No 2)(Ground 3).
- Having regard la the cleat wording of section 24(2) of the Code of Conduct Bureau and Tribunal Act, Cap C15 2004 whether the 13 count charge preferred against the Appellant by someone other than the Attorney-General of the Federation is competent (ISSUE No 3) (Ground 4).
- Whether the majority decision of the Court of Appeal was correct in law when it held that notwithstanding the lack of proper service an the Appellant of the Criminal Summons to appear before the Code of Conduct Tribunal on the 18th of September 2015 such a vice was a mere irregularity cured by the appearance of the appellant at the proceedings regardless of the existence of Appellant’s conditional appearance on protest
(ISSUE No. 4) (Ground 5).
- Whether the majority decision of the court below was right when it justified the refusal of the Code of Conduct Tribunal to obey the Federal High Court to appear before it and show cause why it should not order a stay of further proceedings on the ground that the order in issue was not one specifically asking the lower Tribunal to stay its proceedings (ISSUE No. 5)
(Ground 6)
- Whether the majority decision of the Court of Appeal was correct when it held that the Code of Conduct Tribunal was a criminal court empowered to apply the Administration of Criminal Justice Act (ISSUE No 6) (Ground 7).
On the other hand, learned senior counsel for the respondent ROTIMI JACOBS, SAN identified the following five issues as relevant for the determination of the appeal in the respondent’s brief filed on the 18th day of November, 2015. These are:-
“1. Whether the Court of Appeal was not right in its unanimous decision when it held that the Code of Conduct Tribunal was property constituted when it heard and determined the issues that culminated in the Tribunal ruling of 18th September, 2015 with the Chairman and one member (See Grounds 1 and 2 of the Notice of Appeal al pages 1268- 1278)
- Whether the Court of Appeal was not right when it held that the Code of Conduct Tribunal, though a court of limited criminal jurisdiction, was competent to issue a bench warrant against the Appellant in the event of his failure to appeal before it (see Ground 3 of the Notice of Appeal).
- Whether the Court of Appeal was not right in its majority decision when it held that the charge preferred against the Appellant before the Code of Conduct Tribunal and signed by M. S. Hassan, a Deputy Director in the Federal Ministry of Justice was competent notwithstanding that there was no sitting Attorney-General of the Federation at the time it was initiated (see Ground 4 of the Notice of Appeal).
- Whether the Court of Appeal was not right when it held that the issue of the alleged irregularity in the service of summons on the Appellant to appear before the Code of Conduct Tribunal on 18th September, 2015, was not fatal to the proceedings before the Code of Conduct Tribunal (See Grounds 5 and 7 of the Notice of Appeal).
- Whether the Court of Appeal was not right when it held that since the Federal High Court did not make any order on 17th September, 2015 restraining the Code of Conduct Tribunal from sitting, the issue of disobedience of that order or the superiority of the Federal High Court to the Tribunal would not arise (see ground 6 of the notice of appeal).”
In arguing issue 1, learned leading Senior Counsel for appellant submitted by way of summary that the decision of the Lower Court was erroneous in the interpretation of the Constitution by holding that the Code of Conduct Tribunal was properly constituted in law when it sat, or 18/9/15 with just the Chairman and one other member in contravention of the provisions of paragraph 15(1) of the 5th schedule of the 1999 Constitution as to exercise of powers and jurisdiction vested by the 1999 Constitution and in consequence of the charge and entire proceedings inclusive of the ruling resulting in the instant further appeal is null and void and of no consequence.
To arrive at the above conclusion, learned Senior Counsel referred to paragraph 15(1) of the 5th schedule to the 1999 Constitution (as amended) and stated that the words used therein to the effect that the Code of Conduct Tribunal “shall consist of a Chairman and two other person” are clear and precise and must be given their natural meaning – relying on Amasike vs Registrar General Corporate Affairs Commission (2006) 3 NWLR (Pt.968) 462 and Ngige vs Obi (2006) 14 NWLR (Pt.999) 1; that the literal and ordinary meaning of the provision in question is that for the Code of Conduct Tribunal to be legally functional, there must be at least three persons inclusive of its Chairman that where, for whatever reason the membership of the tribunal falls below three, the deficiency in membership adversely affects the jurisdiction; that the above position is supported by section 20(2) of the Code of Conduct Bureau and Tribunal Act Cap C.23, LFN 2004; that the provisions as to the composition of the tribunal in the Constitution and Cap C23, (supra) admits of no lacuna to be filed by a resort to the provisions of the Interpretation Act, as erroneously held by the Court of Appeal that paragraph 15(1) of the 5th Schedule is both the composition and quorum of the Tribunal and that recourse to the Interpretation Act was therefore unnecessary.
It is the further submission of learned Senior Counsel that the word “shall”, as used in the enactments, connotes command admitting of no discretion or permissiveness while the word “other” has been interpreted in Onwudiwe vs FRN (2006) 10 NWLR (Pt.988) 382 to mean “additional”; that sections 27 and 28 of the Interpretation Act cannot curtail or sideline the Constitutional prescription in paragraph 15(1) of the 5th schedule to the 1999 Constitution neither did the section downsize the Constitutional quorum of the Tribunal from 3 to 2; that since the relevant enactments have made exhaustive provisions for the composition and quorum of the tribunal, the provisions of the Interpretation Act become irrelevant and consequently inapplicable.
It is also the further submission of learned Senior Counsel for appellant that to hold that a 2-man panel of the Tribunal can sit in adjudication contrary to the express provision of the Constitution raises a serious issue of breach of the principles of fair hearing as enshrined in section 36 of the 199 Constitution, (as amended) and urged the court to resolve the issue in favour of appellant.
On his part, learned Senior Counsel for respondent referred to the relevant provisions of the Constitution and Act and the decision of the Lower Court on the issue under consideration and submitted that the Lower Court was right in coming to the conclusion that the tribunal was properly constituted on the 18th day of September, 2015 when it adjudicated on the matter; that it is not the intendment of the legislature that the three members who are to make up the tribunal must sit together at all times because paragraph 15(1) of the 5th schedule is the establishment paragraph of the Tribunal because there is a difference between the expression “consist of” and “quorum of”; that the legislature used the expression “consist of”
not “quorum of”.
Learned Senior Counsel then went on to reproduce various definitions of “consist of and “quorum of” to demonstrate their differences; that paragraph 15(1) of the 5th schedule to 1999 Constitution is the establishment paragraph of the Code of Conduct Tribunal to be made up of a Chairman and two other members as its composition; that the said paragraph makes no provision for the quorum of the tribunal for the purpose of transaction of legally valid business. Learned Senior Counsel then referred to certain sections of the Constitution establishing the courts of record and tribunals – including election tribunals and submitted that composition of the bodies s different from their quorum; that to determine the quorum of the tribunal resort must be had to the provision of section 28 of the Interpretation Act which provides that the Chairman and a member shall be sufficient to form a quorum of any tribunal including the Code of Conduct Tribunal; that the Interpretation Act is applicable to be the interpretation of the provisions of the Constitution as expressly provided in section 318(4) of the 1999 Constitution and held by this Court in A-G Federation vs. A-G Anambra State (No.2) (2002) 6 NWLR (Pt.754) 542 at 855; that the decision in Okoro vs. Nigerian Army Council (2003) 3 NWLR (Pt.647) 77 and State vs. Olatunji (2003) 14 NWLR (Pt.839) 138 are not relevant to the facts of this case and consequently inapplicable as they relate to the non-qualification of the members of the Court Martial and not the quorum of the Court Martial.
Finally, learned Counsel urged the court to resolve the issue against appellant.
The reply brief of appellant filed on 25/11/15 re-emphasized the points already made in the appellant’s brief. I therefore see no need to reproduce them herein as to do so would no useful purpose.
It is not disputed that the proceedings of the Code of Conduct Tribunal including the ruling thereof conducted on the 18th day of September, 2015 was conducted by the Chairman and a member thereof; that is two members of the tribunal including the Chairman conducted the proceedings and delivered the ruling in issue. The issue under consideration is simply whether the said tribunal as constituted was constitutional or had the vires or jurisdiction or competence to sit and conduct any proceedings including the proceedings in question having regard to the provisions of paragraph 15(1) of the 5th schedule to the Constitution of the Federal Republic of Nigeria 1999, as amended (hereinafter referred to as the 1999 Constitution as amended).
The relevant provisions of the 1999 Constitution (as amended) and Acts of the National Assembly relied upon by Counsel for the contending parties are as follows:-
(1) Paragraph 15(1) of the 5rh schedule to the 1999 Constitution as amended:
“There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons.”
Section 201(1) and (2) of the Code of Conduct Bureau and Tribunal Act; Cap. C15 LFN, 2004 provided thus:
”(1) There is hereby established a tribunal to be known as the Code of Conduct Tribunal (in this Act referred to as “the Tribunal”).
(2) The Tribunal shall consist of a Chairman and two other Section 318(4) of the 1999 Constitution as amended provides thus:
”The Interpretation Act shall apply far the purpose of interpreting the provisions of this Constitution.”
On the other hand section 28 of the Interpretation Act, provides as follows:-
“Notwithstanding anything contained in any Act or any other enactment, the quorum of any tribunal, commission of inquiry (including any appeal tribunal established for the purpose of hearing any appeal arising therefrom) shall not be less than two (including the Chairman):
Provided that the Chairman and the member shall be present at every sitting of the tribunal, commission of inquiry throughout the duration of the trial or hearing.”
The issue is, whether by the provisions of the 1999 Constitution as amended supra, and the Acts of the National Assembly, also reproduced above, the composition of the Code of Conduct Tribunal on 18th September, 2015 of the Chairman and one member is valid or not It is the submission of learned Senior Counsel for appellant that the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, (as amended) and section 20 of the Code of Conduct Bureau and Tribunal Act constitute both the composition and quorum of the Code of Conduct Tribunal, which is, that at all times the said tribunal must consist of a Chairman and two other members otherwise it is incompetent to sit and transact any business while the respondent contends that the tribunal is properly constituted for the purpose of any proceedings if it consists of Chairman and members thereof.
By submitted that the above relevant provisions of the 1999 Constitution as amended and sections of the Acts constitute both the composition and quorum of the Code of Conduct Tribunal, learned Senior Counsel for appellant admits that there is a difference between composition and quorum but that in the case of the tribunal in question, the terms/words mean the same things.
To resolve the issue, we shall have to start by understanding some relevant words used in draft the provisions; the are “consist of”
At page 208 of New Webster’s Dictionary of English Language, International Edition, the word “consist” is defined inter alia, thus:-
“To be made up or composed ¦. To reside or lie essentially.”
On the other hand, the word is defined in Black s Law Dictionary, 6th Edition at page 308 as follows:-
“To stand together, to be composed of or made up of.”
From the above definitions, it is very clear, and I hold the view that paragraph 15(1) of the 5ih schedule to the 1999 Constitution as amended and section 20(1) and (2) of Cap C15 LFN 2004 provide for the establishment and composition of the Code of Conduct Tribunal as consisting of a Chairman and two other members. This construction is clearly the literal meaning of the words used by the draftsman in the relevant sections concerned.
However, does the composition also mean the quorum needed for the tribunal of a Cha man and two other members to competently conduct any proceedings This leads to the meaning of “quorum What does it mean
Blacks Law Dictionary, 6th Ed Page 1255 defines the word thus:
“A majority of the entire body, e.g. a quorum of a State Supreme Court. The number of members who must be present in a deliberative body before business may be transacted. In both houses of congress a quorum consists of a majority of those chosen and sworn. Such a number of the members of a body as is competent to transact business in the absence of the other members.”
It should be noted that the words “consist of” are used in the 1999 Constitution, as amended in the establishment and composition sections of the Courts of record such as the Court of Appeal in section 237(2); Federal High Court Section 249(2). See also sections 255 and 270 of the said Constitution.
Section 230 of the 1999 Constitution, (as amended) established the Supreme Court of Nigeria and detailed its composition but section 234 of the said 1999 Constitution provides for the quorum or Constitution of the court for the purpose of exercising its jurisdiction, inter alia, thus:
”For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court … . : See also section 247(1) in relation to the Court of Appeal.
I agree with the submission of learned Senior Counsel for the respondent and the Lower Court that the above provisions relate to the quorum of the relevant courts for the purpose of exercising the jurisdiction provision is clearly absent in paragraph 15(1) of the 5th schedule to the 1999 Constitution, as amended. The said paragraph and section 20(1) and 2 of Cap. C15 of LFN 2004 equally did not contain any expression relating to the composition of the tribunal in the exercise of its jurisdiction.
To determine the quorum of the Code of Conduct Tribunal as established, one has to look at section 28 of the Interpretation Act which, by operation of section 318(4) of the 1999 Constitution as amended, “¦shall apply for the purpose of interpreting the provisions of this Constitution”
It is important to note that a resort to the provisions of the Interpretation Act is not for the purpose of filling in a lacuna but of interpretation of the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, (supra) and section 201(1) and (2) of Cap. C15 of LFN 2004 which established the Code of Conduct Tribunal as consisting of the Chairman and two other members. In other words, what do these provisions mean for the purpose of the tribunal exercising its jurisdiction
The answer is as provided by section 28 of the interpretation Act thus, inter alia:
“Notwithstanding anything contained in any Act at any other enactment, the quorum of any tribunal, commission of inquiry (including any appeal tribunal established for the purpose of hearing any appeal arising therefrom) shall not be less than two (including the Chairman)…”
From the above provision, it is clear that any sitting of the Code of Conduct Tribunal presided by the Chairman and one member, as was the case herein, is valid.
The above position is very much similar to the provisions of section 285(1) of the 1999 Constitution, as amended by section 29 of the First Alteration Act which establishes the National and State Houses of Assembly Election Tribunals In section 285(3) of the said 1999 Constitution, it is provided thus:-
“The composition of the National and State Houses of Assembly Election Tribunal and the Governorship Election Tribunal respectively shall be as set out in the six schedule to this Constitution.”
However, paragraph 1(1) of the said sixth schedule enacts thus:-
”A National and State Houses of Assembly Election Tribunal shall consist of a Chairman and two other members” – just like the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, as amended in relation to the Code of Conduct Tribunal.
In order to determine the quorum of the said National and State Houses of Assembly Election Tribunal, section 285(4) of the said 1999 Constitution as amended by the First Alteration provides that:
”The quorum of an election tribunal established under this section shall be the Chairman and one other member.”
It is therefore very clear from the above that the interpretation given by learned Senior Counsel for appellant in respect of the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, as amended as constituting both the composition and quorum of the Code of Conduct Tribunal cannot be correct, having regard to the provisions of the Constitution and laws examined supra.
Before leaving this issue, I need to comment on the case of Okoro vs Nigerian Army Council and State vs Olatunji (supra) cited and relied upon by learned Senior Counsel for appellant. I agree with learned counsel for respondent that the facts of both cases are totally different from those of the instant case and that those cases relate to the qualification of the members of the Court-Martial which has nothing to do with the quorum of the said Court-Martial. The question was whether a member of the Armed Forces of a lower rank than that required by section 133(3) of the Armed Forces Act is qualified to sit and deliberate on matters in the Court- Martial.
In the circumstance, I resolve issue 1 against appellant.
In respect of issue 2, it is the submission of learned Senior Counsel for appellant that the Lower Court was in error when it held that the Code of Conduct Tribunal is a court of limited criminal jurisdiction competent and empowered to issue a Bench Warrant against appellant in the event of his absence from the proceedings of the Tribunal; that contrary to the holding of the Lower Court the issue, paragraph 181(1), (2), (3) and (4) of the 5th schedule to the 1999 Constitution as amended, demonstrates that the jurisdiction of the Code of Conduct Tribunal not criminal because the tribunal was not designed to exercise criminal jurisdiction as none of the punishments available under penal legislations is made available to the tribunal as can be seen in paragraph 15(2) of the 5th schedule to the 1999 Constitution, that the Code of Conduct Tribunal is disciplinary body for public officers who fall below the acceptable level of probity, ethics etc; that the Code of Conduct Tribunal not being a court with criminal jurisdiction, it cannot take refuge under the Administration of Criminal Justice Act, 2015 or issue summons, warrants of arrest and other penal processes and that the physical presence of appellant at the Code of Conduct Tribunal was consequently not necessary. Learned Senior Counsel urged the Court to resolve the issue favour of appellant.
On his part, learned Senior Counsel for the respondent submitted that the contention by appellant that the tribunal has no criminal jurisdiction because it cannot impose any of the punishments in the panel legislation is misconceived as borne out by a careful consideration of the entire provisions of the 5th schedule to the 1999 Constitution, as amended; that by the provisions of paragraph 1 – 10 of the 5th schedule, the tribunal has the power to try certain contraventions that border on corruption by public officers such as bribe, receipt of unauthorized gift and abuse of office; that the tribunal has power to impose punishment after making a finding of guilt – which are part of the exercise of criminal jurisdiction; that the punishment of forfeiture of asset under paragraph 18(2) (c) of the 5th schedule is also prescribed under section 30 of the Economic and Financial Crimes Commissions (Establishment, etc) Act Cap El LFN 2004; section 20 of the said EFCC Act and section 11 and 17 of the Advance Fee Fraud Act, Cap Act LFN 2010; that the tribunal is not the same as any of the professional disciplinary bodies like the Legal Practitioners’ Disciplinary Committee and Medical and Dental Practitioners Disciplinary Committee which are not creatures of the Constitution; that this Court should be persuaded by the decision of the full court of the Court of Appeal in A-G Federation vs. Abubakar (2007) 8 NWLR (Pt.1035) 117 to the effect that the Code of Conduct Tribunal has criminal jurisdiction and urged the court to resolve the issue against appellant.
In the reply brief, learned Senior Counsel for appellant submitted that the Code of Conduct does not provide an offence named “corruption” or “abuse” which are expressly offences the ICPC Act and EFCC Act or other legislations which vests jurisdiction the Federal High Court; that there is a difference between a disciplinary penalty and a punishment for an offence, relying on United Stale vs Levett (1945) 328 US 303 and that the court should not rely on the A-G Federation vs Abubakar decision of the Court of Appeal as it cannot import meaning into the 1999 Constitution, as amended not intended by the legislature.
The issue, as contended by learned Senior Counsel for appellant is simply whether the sanctions specified in section 23(2) Code of Conduct Bureau and Tribunal Act and paragraph 18(2) of the 5th Schedule to the 1999 Constitution, as amended not being the traditionally recognized criminal law sanctions such as fines or imprisonment, they are not basically more of administrative then criminal sanctions, known to law.
In the case of United State vs. Levet (1945) 328 U.S. 303 cited by learned Senior Counsel for appellant. It was held thus:
“Punishment presupposes an offence, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprive of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a feloney¦or because he is no longer qualified. ¦ the deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determination this fact.”
Clearly therefore, there are administrative and criminal sanctions.
It is correct to say that the sanctions the Code of Conduct Tribunal can impose are purely administrative, if so why are the provisions of the Code of Conduct Bureau and Tribunal Act and paragraph 18 of the 5th schedule to the 1999 Constitution, as amended replete with unambiguous terms and expressions indicating that the proceeding before the said Code of Conduct Tribunal are criminal in nature The terms and expressions used in the above legislations include arrest, arraignment, the charge, plea, prosecution, conviction, guilty, sentence, prerogative of mercy, etc. See sections 23, 24 of the Code of Conduct Bureau and Tribunal Act; paragraph 18 of the 5th schedule in the 1999 Constitution, as amended; paragraphs 3, 4 and Forms 3, 4, 6, 7, 8 and 9 of the Third (3rd) schedule to the Code of Conduct Bureau and Tribunal Act. Finally, paragraph 17 of the 3rd schedule to the Code of Conduct Bureau and Tribunal Act empowers the tribunal to apply the provisions of the Criminal Procedure Act or Code in the conduct of its proceedings in the “trial of offences generally.” With the repeal of the Criminal Procedure Act and Criminal Procedure Code, section 493 of the Administration of Criminal Justice Act, 2015, has taken their place. The 3rd schedule to the Code of Conduct Bureau and Tribunal Act is actually headed “Code of Conduct Tribunal Rules of Procedure” and is sub-divided as follows:
(1) Institution of proceedings
(2) Order on an accused to appear.
(3) Commencement of trial
(4) Plea of not guilty or no pea;
(5) Presentation of case for prosecution
(6) Procedure after presentation of evidence by the prosecutor;
(7) Defence, etc, etc.
From the totality of the provisions it is my view that it is clear that the intention of the legislature is to make the proceedings of the tribunal criminal proceeding to be regulated by criminal procedure.
It must be observed that the nature of the punishment lo be imposed by the tribunal is not exhaustive at the moment because paragraph 8(1) of the 5th schedule to the 1999 Constitution, as amended and section 23(1) of the Code of Conduct Bureau and Tribunal Act contain a provision to the effect that the National Assembly may prescribe “such other punishment” other than the current ones to be imposed by the tribunal. This clearly shows a possibility of the National Assembly imposing sanctions of fines and or imprisonment for offences under the Act or paragraph 18 of the 5th schedule to the said 1999 Constitution, as amended, if so desired.
The Lower Court in considering the issue had come to the conclusion the Code of Conduct Tribunal is a tribunal with limited criminal jurisdiction. However, looking closely at the provisions of the 5th schedule to the 1999 Constitution, as amended and the Code of Conduct Bureau and Tribunal Act, earlier referred to in this judgment, it is safer to hold that the said tribunal has a quasi-criminal jurisdiction designed by the 1999 Constitution, as amended. It is a peculiar tribunal crafted by the Constitution. In the circumstance, I hold the strong view that as a tribunal with quasi-criminal jurisdiction with authority to be guided by the Criminal Procedure Act or Code in the conduct of its proceedings, it can legally issue bench warrant for the purpose of carrying out its quasi criminal jurisdiction. I should not be understood as saying that the Code of Conduct Tribunal is a court of superior record or jurisdiction with relevant inherent powers and sanctions but that as a quasi-criminal tribunal/court, it has the necessary powers to put into effect its mandate of ensuring accountability, probity, transparency etc of public officers in public office.
I therefore resolve issue 2 against appellant
On issue 3, it is the submission of learned Senior Counsel for appellant that having regard to the clear wording of section 24(2) of the Code of Conduct Bureau and Tribunal Act the 13 count charge preferred against appellant by someone other than the Attorney-General of the Federation is incompetent and liable to be set aside; that where a person other than the Attorney-General of the Federation files a charge as in the instant case, it was mandatory for the person to prove due authorization by the Attorney-General or the Solicitor-General of the Federation, which the respondent failed to do; that the provisions of section 2 and 4 of the Law Officers Act, Cap L18 LFN 2004 which generally authorizes the Solicitor General of the Federal Ministry of Justice to authorize Law Officers to act on behalf of the Ministry in the absence of sitting Attorney-General of the Federation does not apply to the facts of this case which specifically requires the Attorney-General of the Federation to act personally or directly before an act can be valid, relying on Matari vs Dangaladima (1993) 3 NWLR (Pt.281) 266; that is not in dispute that at the time of filing the charge, there was no sitting Attorney-General of the Federation; in the alternative that there is nothing to show that the Solicitor-General either exercised the powers of the Attorney-General under the Code of Conduct Tribunal Act or authorized any other person to exercise same and urged the court to resolve the issue in favour of appellant.
It is the contention of learned Senior Counsel for respondent that the power to initiate criminal prosecution in Nigeria is conferred on the Attorney-General of the Federation by the provisions of section 174 and 211 of the 1999 Constitution, as amended and overrides every other law including section 24(2) of the Code of Conduct Bureau and Tribunal Act; that section 174(1) and (2) of the 1999 Constitution, as amended also recognizes the fact that other authorities or persons, apart from the Attorney-General may initiate and undertake criminal proceedings against any person, relying on Comptroller of Prisons v. Adekanye (2002) 15 NWLR (Pt.790) 318 at 318 at 329; FRN vs. Osahon (2006) 5 NWLR (Pt.973) 361 at 406; FRN vs. Adewunmi (2007) 10 NWLR (Pt.1042) 399 at 418 – 419.
In the alternative, learned Senior Counsel submitted that M. S. Hassan Esq, a Law Officer, can competently initiate a criminal proceedings by virtue of section 2 and 4 of the Law Officers Act; that there was no issue raised either at the tribunal or the Lower Court on appeal that M. S. Hassan, Esq does not have authority on the Solicitor-General, as such the need for the proof of such authorization did not arise; that in any event, it is only the Solicitor-General or the Attorney-General of the Federation that can challenge the authority of Mr. Hassan to file the charge in question, not any other person relying on FRN vs. Adewunmi (supra) at 416 – 417. Finally counsel urged the court to resolve the issue against the appellant.
Section 24(2) of the Code of Conduct Bureau and Tribunal Act which forms the basis of the issue under consideration provides as follows:-
“(2) Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officers in the Federal Ministry of Justice as the Attorney-General of the Federation by authorize so to do.”
It s not disputed that at the time M. S Hassan Esq, a Law Officer the Federal Ministry of Justice filed the charge against appellant, there was no sitting Attorney-General of the Federation. It is the contention of learned Senior Counsel for appellant that with the absence of a sitting Attorney-General of the Federation, M. S. Hassan Esq, could not have been so authoized by an absent Attorney-General of the Federation to initiate the criminal proceedings against appellant as required by the said section 24(2) supra. The contention of learned Senior Counsel for appellant is also that the provision of section 24(2) supra is mandatory and that non-compliance vitiates the charge and proceedings arising therefrom. The question is whether learned Senior Counsel is right.
I had earlier, the consideration of issue 2 supra, come to the conclusion that the Code of Conduct Tribunal has quasi-criminal jurisdiction over matters before it. The above being the case, it is necessary to look at the Constitutional powers of the Attorney, General of the Federation in initiating criminal prosecutions as enshrined in section 174 (1) and (2) of the 1999 Constitution, as amended which provides thus:
‘(l) The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings (sic) (prosecution) against any person before any court of law in Nigeria, other than a Court-Martial, in respect of any offence created by or under any Act of the National Assembly;
(b) ¦¦¦¦.
(2) The powers conferred upon the Attorney-General of the Federal on under subsection (1) of this section may be exercised by him in person or through officers of his department.
It is not in doubt that the Code of Conduct Bureau and Tribunal Act which created the offences peculiar to the jurisdiction of the tribunal is an Act of the National Assembly in fact and by operation of law.
Also not in dispute in the fact that M. S. Hassan Esq, a Deputy Director in the Federal Ministry of Justice is a Law Officer in the department/chambers of the Attorney-General of the Federation.
In interpreting the provisions of section 174 of the 1999 Constitution, as amended or similar provision under the 1979 Constitution – section 160 thereof, this Court has held in a number of cases that the Attorney-Generals power of public prosecution is not exclusive as any other authority or person can institute and undertake criminal prosecution – see FRN vs Adewunmi supra, at 418-419 where this Court stated Inter alia thus:
“These sections though very familiar in content do not require that the officer can only exercise the power to initiate criminal proceedings if the Attorney-General expressly donated his power to them. The provisions of this section presumed that any officer in any department of the Attorney-Generals office is empowered to initiate criminal proceeding unless it is proved otherwise¦” See also FRN vs Osahon (2006) 5 NWLR (Pt.973) 361.
It is very clear that the power of initiating criminal proceedings by any officer of the department of the Attorney-General of the Federation is not dependent on the office of the said Attorney-General of the Federation having an incumbent.
Another provision that needs looking into in trying to resolve the issue under consideration is sections 2 and 4 of the Law Officers Act, Cap L.8, LFN 2004 which enact as follows:-
“2. The Officer of the Attorney-General, Solicitor General and State Counsel are hereby created.
- The Solicitor General of the Federation in the absence of the Attorney-General of the Federation may perform any of the duties and shall have the same powers as are imposed by law on the Attorney-General of the Federation.”
It is not in dispute that at the time the Law Officer, M. S. Hassan Esq initiated the proceedings by filing the charge against appellant, there was and still is, a sitting Solicitor General in the Federal Ministry of Justice. I had earlier also found that M. S. Hassan Esq is a Law Officer in the department of the Attorney-General of the Federation.
Thirdly, there is no issue before the tribunal and the Lower Court concerning the authority of the Solicitor General authorizing Mr. Hassan to file the charge since by the provisions of section 4 of the Law Offices Act supra, the Solicitor General, in the absence of a sitting Attorney-General, as in the instant case, “may perform any of the duties and shall have the same powers as are imposed by law an the Attorney-General of the Federation” such as that imposed by section 24(2) of the Code of Conduct Bureau and Tribunal Act.
In the circumstance and having regard to the stale of the law applicable to the facts relevant to the issue considered supra, I find no merit in issue 3 which is hereby resolved against appellant.
On issue 4, it is the submission of learned Senior Counsel for appellant that the Lower Court was in error when it held that notwithstanding the lack of proper service on the appellant of the Criminal Summons to appear before the tribunal on 18th September, 2015, such a vice was a mere irregularity which was cured by the appearance of appellant at the proceedings despite the conditional appearance of appellant on protest.
The complete answer to the above issue as argued lies in the provision of section 136(a) of the Administration of Criminal Justice 2015 to the effect that trials may be held notwithstanding-
(a) any irregularity, defect or error in the summons or warrant or in the issuing service or execution of the Summons or Warrant.
By operation of section 4(2) (b) of the interpretation Act, references to the Criminal Procedure Act and/or Criminal Procedure Code in the Third (3rd) Schedule to the Code of Conduct and Bureau Tribunal Act particularly rule 17 thereof are understood or construed to mean references to sect on 136 of the said Administration of Criminal Justice Act, 2015. The said section 136(a) of the Act provides as follows:-
” Where a defendant is before a court, whether voluntarily or on summons or after being arrested with or without warrant, or while in custody for the same or any other offence, the trial may be held notwithstanding –
(a) any irregularity, defect or error in the summons or warrant or in the issuing, service, or execution of the summons or warrant.”
In the circumstance issue 4 is also resolved against appellant.
It is the submission of learned Senior Counsel for appellant on issue 5 that the decision of the Lower Court was wrong when it justified the refusal of the Code of Conduct Tribunal to obey the order of the Federal High Court to appear before it and show cause why it should not order a stay of further proceedings on the ground that the order in issue was not one specifically asking the tribunal to slay its proceedings.
I have carefully gone through the record particularly the order of the Federal High Court in suit No FHC/ABJ/CS/775/2015 issued on the 17th day of September, 2015 and reproduced at pages 946 – 949 of Vol. 2 of the record and the judgment of the Lower Court on the issue particularly at pages 1243 – 1244 of the record and I have no hesitation in agreeing with the decision of the Lower Court on the matter The Lower Court found/held as follows, inter alia:-
”It is apparent an the face of the record of appeal that the tribunal was misled into believing or thinking that the Federal High Court made an order “baring” it from sitting. There was no such order. The order of the Federal High Court reproduced above, merely directed the main respondents “to appear before this court… And show cause why the interim orders of injunction being sought by the plaintiff/appellant should not be made…The respondent to the Appellant ex-parte application could “appear” before the Federal High Court either by themselves or by their legal practitioners to react to the appellants motion on notice for interim injunction. The order of the Federal High Court did not ask the Tribunal to slay proceedings or further proceedings in the case, the subject natter of this appeal. Since there was no order by the Federal High Court directing the tribunal to stay proceedings, the argument of the contending parties on whether or not the tribunal is a superior court having coordinate jurisdiction with the Federal High Court are merely of academic relevance.”
As stated earlier, the above decision cannot be faulted having regard to the facts of the case and arguments of Counsel on the issue concerned. The only positive order made by that court was for the respondents to Federal High Court and show cause why the interim orders of injunction being sought by the appellant should not be made. The respondents to the application in which the order was made could appear either personally or by legal practitioners. They were not ordered to appear in person. In any event the suit in which the order was made is not the matter giving rise to this appeal.
I hold the view that if appellant felt aggrieved with the conduct of the respondents in respect of the order in issue, appropriate processes could be initiated in the suit in which the order was made to seek appropriate redress. In any event, there was no order of the Federal High Court staying the proceedings of the tribunal which was disobeyed by the tribunal. I hold the view that the instant issue is an attempt at intimidating the Code of Conduct Tribunal which is very unfortunate.
In the circumstance I find this issue, like the others already considered, of no merit and accordingly resolved against appellant.
Having resolved issues 1 – 5 supra against appellant, I see no need to consider issue 6 because such a consideration will serve no useful purpose. In fact issue 6 has already been resolved in substance against appellant during my consideration of issue 2 supra.
In conclusion, I find no merit in the appeal which is accordingly dismissed.
The judgment of the Lower Court delivered on the 30th day of October, 2015 dismissing the appeal of appellant against the ruling of Code of Conduct Tribunal of 18th September, 2015 is hereby affirmed.
Appeal dismissed.
SC.852/2015
