The Federal Republic Of Nigeria V Lord Chief Udensi Ifegwu (2003)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, JSC.

The respondent was one of six accused persons arraigned and tried before the Failed Banks Tribunal, Lagos. The charge contained ten counts although he was involved in only counts 1 and 10. On 19 March, 1996, the Tribunal presided over by Ope-Agbe, J. as Chairman convicted the respondent on the two counts and sentenced him to 5 years in prison in respect of count 1 and N100,000.00 fine or 3 years in prison in respect of count 10. He appealed to the Special Appeal Tribunal (coram: Hon. Justice D.O. Coker (Chairman) and Chief (Mrs) P.C. Ajayi-Obe, SAN (Member)]. On 29 May, 1997, the Special Appeal Tribunal allowed the appeal on sentence by substituting for each of counts 1 and 10, N100,000.00 fine or 2 years in prison. Thus the respondent came to the end of the road as far as the appellate process was concerned since under section 5 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 which gave him a right of appeal to the Special Appeal Tribunal, it was provided thus:

“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to he Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree 1984, as amended, in accordance with the provisions of that Decree.

(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the Tribunal shall be final.”

It was obvious that the right of appeal was no longer available to the respondent. But he did not give up nor did his counsel, Professor Adesanya, SAN. The learned Senior Advocate filed an originating summons in the Federal High Court, Lagos in June, 1999. He came under Fundamental Rights Protection. The sum total of the complaint was that Failed Banks Tribunal and the Special Appeal Tribunal which heard the case acted in breach of the fundamental rights of the respondent guaranteed under section 33 of the 1979 Constitution then applicable, being without jurisdiction to try, convict and sentence him in respect of the counts laid against him. Put in another way, that he could not be made to suffer criminal penalties for acts which did not constitute any offence at the time they were done.

The originating summons sought three reliefs upon the determination of two questions. The three reliefs were:

“(1) A Declaration that the Failed Banks Tribunal, Zone II, Lagos as well as the Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the Plaintiff under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 of Count 1 in the Charge No. FBFMT/LZII/IC/95 and Appeal No SAT/FBT/273/96 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria, 1979 as amended being the law in force at the relevant date.

(2) A Declaration that the Failed Banks Tribunal, Zone II, Lagos as well as The Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the Plaintiff under the

Banks and Other Financial Institution Decree, 1991 of Count 10 in the charge No FBFMT/LZII/IC/95 and Appeal No SAT/FBT/273/96 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria, 1976 as amended) being the law in force at the relevant date.

(3). An Order setting aside the conviction and sentence.”

It is relevant to also reproduce the two questions for determination because they were the very questions referred by the Federal High Court presided over by Odunowo, J. under section 295(2) of the 1999 Constitution to the Court of Appeal.

They read as follows:

“(1) Whether the Failed Banks Tribunal, as well as the Special Appeals Tribunal had the jurisdiction to try, convict and sentence the Plaintiff on count 1 in the Charge No FBFMT/LZII/IC/95 under the Failed Banks (Recovery of Debts) and Financial Malpractice in Bank Decree, 1994 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 as amended.

(2) Whether the Failed Banks Tribunal, as well as the Special Appeals Tribunal had the jurisdiction to try, convict and sentence the Plaintiff on count 10 in Charge No FBFMT/LZII/IC/95 under the Banks and Other Financial Institutions Decree 1991 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 as amended.”