The Miscellaneous Offences Tribunal & Anor. V. Nwammiri Ekpe Okoroafor & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C

In this appeal which emanated from the Court of Appeal (Lagos Division), questions with regard to whether the Lagos High Court has supervisory jurisdiction over inferior tribunals, such as the Miscellaneous Offences Tribunal that was set up under and by virtue of Decree No. 20 of 1984 (as amended) have been raised.

The matter apparently came before the Court of Appeal in this manner. The respondents to this appeal were pharmacists. On the 29th June, 1989 they were arrested and detained upon an allegation that they were involved in the manufacture of fake and adulterated drugs. Later, on the 15th September, 1989, they were brought before the Miscellaneous Offences Tribunal where they were charged with possession of adulterated drugs. They were then remanded in prison custody from that date, namely 15th September, 1989. They were so remanded in prison custody until the 15th of November 1990, when bail was granted to them.

The respondents upon the advice of their counsel, and upon the belief that appellants and the Tribunal have not proceeded with the trial of the allegation levelled against them in accordance with the law that set up the offences and Tribunal decided to move to the High Court for reliefs.

For that purpose, the respondents filed an application at the High Court, pursuant to Order 53 rule 2 of the Lagos State High Court (Civil Procedure) Rules 1972 for the following reliefs.

“(1) An order of Prohibition directed against the respondents herein and prohibiting the said respondents from trying the charges comprised in charge No. MOT/140/89 (The Federal Republic of Nigeria v. Nwammiri Ekpe Okoroafor and Another).

(2) An order of Certiorari to remove into this Honourable Court, for the purpose of their being quashed, the entire proceedings comprised in charge No. MOT/140/89 (Federal Republic of Nigeria v. Nwammiri Ekpe & Another).

(3) And for such further consequential order(s) as this Honourable Court may consider appropriate to make in the circumstances.”

The grounds upon which the reliefs were sought read thus:

(1) A fundamental condition precedent for exercising jurisdiction (to wit: – service of the statutory summons to appear on the accused persons) has not been complied with.

(2) A fundamental condition precedent to jurisdiction to wit:

(a) The applicants were brought before the Miscellaneous Offences Tribunal in respect of the aforementioned charges for the first time on September 15, 1989.

(b) Section 44(1) of the Special Tribunal (Miscellaneous Offences) Decree 20 of 1984 (as amended by Decree No. 27 of 1986) requires that proceedings in respect of offences shall be concluded by the tribunal within 14 days of its first sitting.

(c) A period of over one year and six months has elapsed since the said September 15, 1989, but prosecution has not, and is yet to commence in respect of the aforesaid charges.

(3) By remanding the applicants in prison custody for a period of one year and two months, the Miscellaneous Offences Tribunal has fettered its own discretion to impose a lesser sentence than imprisonment for one year and two months (in the event of the applicants being found guilty) and has thereby deprived itself of jurisdiction to try, convict and/or sentence the applicants herein.

When the application came before the High court of Lagos State, it would appear that four questions were thereafter referred to the Court of Appeal for determination-:

“(1) Is the Miscellaneous Offences Tribunal, as constituted under the Miscellaneous Offences Decree No. 20 of 1984 (as amended) an inferior tribunal, or is it a Superior Court of Record, having regard to section 6 of the Constitution of the Federal Republic of Nigeria, 1979 (as amended)

(2) If it is held that the Miscellaneous Offences Tribunal is an inferior tribunal, then does section 236 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) not confer supervisory jurisdiction on the High Court over the proceedings of the Miscellaneous Offences. (3) In the event that (2) above is answered in the affirmative, can the High Court exercise supervisory jurisdiction by way of Certiorari and prohibition over the proceedings of the Miscellaneous Offences Tribunal aforesaid, notwithstanding the provisions of the TRIBUNAL (Miscellaneous Provisions) Decree No.9 of 1991.

(4) Is there any stipulation of law (constitutional or otherwise) to the effect that the “Supervisory jurisdiction conferred on the High Courts under section 236 of the Constitution can only be exercised in respect of matters over which the High Court has “original jurisdiction”

However, when the application came up for hearing before the court below, the applicants decided to limit for the consideration of that court, only one question. And it reads:-

“When would the ouster clauses contained in Decree No.9 of 1991 apply so as to take away the supervisory jurisdiction of the High Court of Lagos State to review proceedings in the Miscellaneous Offences Tribunal.”

The question so posed was resolved in favour of the applicants, who are now the respondents in this appeal. In the event of the leading judgment of Pats-Acholonu JCA, the primary contention of the respondents, now appellants is that the provisions of Sections 4, 5(5) and 6(1) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 of the Laws of the Federation 1990 are not applicable to offences under Counterfeit and Fake Drugs (Miscellaneous Provisions) Act, Cap. 73 Laws of the Federation of Nigeria, was considered and rejected.

His Lordship, then went further to hold thus:

“There is no doubt in my mind that the employment of the word ‘shall’ in the Special Tribunal (Miscellaneous Offences No.2) Amendment Decree and as reflected in Cap 73 of the Laws of the Federal Republic of Nigeria shows that it is a command of the legislature intended to be abided by all concerned in the administration of justice in that regard.”

And with regard to the question posed to the court, he held, as follows:-

“I would state that an ouster clause in Decree No.9 of 1991 will apply to take away the supervisory jurisdiction of the High Court of Lagos State only when an inferior tribunal abides strictly in its entirety to the prescription which gives it powers and where it does not seek to substitute its own procedure contrary to that laid down by statute as to make a trial conducted by it a nullity. In this case before us there has been flagrant disobedience of the law of the land by the agencies authorized to effectuate it. Therefore neither the tribunal nor the prosecution can take shelter under the ouster clause”

As the court below decisively answered the question raised before in the affirmative, the appellants have appealed to this court pursuant thereto, they filed three grounds of appeal. They need not be set out in this judgment. This is because the issues raised for the determination of the appeal flow from the grounds of appeal.

In the appellants’ brief filed for them by their Learned Counsel, C.J. Okpoko, a Legal Officer, in the Federal Ministry of Justice, the following are issues set down for the determination of the appeal:”

1) Whether the provisions of section 1(8) of Decree NO.9 of 1991 that ousted the supervisory jurisdiction or power of judicial review of a High Court is dependent upon the tribunal complying with the provisions of the law creating it.

(2) Whether the provisions of sections 4, 5(5) and 6(1) of Special Tribunal (Miscellaneous Offences) Act, Cap 410 L.F.N. 1990 is applicable to the trial of offences created under Counterfeit and Fake Drugs (Miscellaneous Provisions) Act Cap. 73 L.F.N. 1990.

(3) Was the Court of Appeal right in so holding that in this case before us there has been flagrant disobedience of the law of the land by the agencies authorized to effectuate it. Therefore neither the tribunal nor the prosecution can take shelter under the ouster clause.

(4) Whether by Court of Appeal rules, brief writing is required to argue a Reference.”

The respondents in the brief filed on their behalf by their Learned Counsel, Inam Wilson, issues upon which this appeal should be identified were also set down. I do not, however, propose to reproduce them here. This is because the issues so framed raised questions similar to those raised by the issues reproduced above from the appellants’ brief. For that reason, the merits of this appeal will be considered in the light of the issues raised in the appellants’ brief.

With regard to the 1st issue, it is the contention of the appellants, that the provisions of section 1(8) of Decree 9 of 1990, clearly ousted the supervisory jurisdiction of the High Court of Lagos State over the Miscellaneous Offences Tribunal. It is further argued for the appellants that the court below was in error to have held that the effectiveness of the ouster clause in the provisions of Section 1(8) of decree No.9 of 1991 is not dependent upon the tribunal complying with the provisions of the law creating it.

In support of this contention the case of A.G. Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552 at 580 where Oputa JSC said: In Attorney-General v. Dosunmu (supra) this Court in construing provisions similar to the above in relation to the jurisdiction of High Courts to hear matters brought before it said at page 580 thus:-

“It is true that the powers are great, they are however not unlimited. They are limited by any ouster clause. In these days that a decree has supremacy even over the Constitution (See the Federal Military Government (Supremacy etc) Decree No. 28 of 1970) any clear and specific ouster in a decree as in section 2(1)(a) of Decree No. 17 of 1977 has to be seriously considered and religiously obeyed. It is the duty of the courts to expound their jurisdiction but it is no part of our duty to expand our jurisdiction that will require legislation. The best advice here is that given by Rigby, L.J. in Re Walkins (1896) L.R. 2Ed. P339 that “we ought not to overstep our jurisdiction because we think it might be advantageous so to do”.

Later in that judgment, His Lordship at page 581, said:

“In a recent case of Joseph Mangtup Din v. Attorney General of the Federation (1988)4 NWLR (Pt. 87) 147 at P.171, this court held that an indirect challenge to the validity of Act No. 58 of 1970 forfeiting the appellants’ property falls within the ambit of the provisions of section 6 subsection (6)(d) of the 1979 Constitution. Courts guard their jurisdiction zealously. And that is how it should be. But if in any given case that jurisdiction has been ousted by the provisions of the Constitution or a Decree (Act), then the path of constitutionalism will dictate a willing compliance with the ouster clauses”.

It is upon this decision of the Supreme Court that the appellants have argued that the jurisdiction of the High Court over this matter is completely ousted having regard to the ouster clause in Section1 (8) of Decree No.9 of 1991 which is reproduced hereunder:-

“Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, as amended, or any enactment to the contrary, the supervisory jurisdiction or power of judicial review of a High Court shall not extend to any matter or proceedings before a tribunal duly constituted before or after commencement of this Decree.”

It is manifest from the brief filed for the respondents by their learned counsel, that the first point they took is to recognise that the provision in section 1(8) of Decree 9, was intended to oust the jurisdiction or power of a High Court to carry out a review of any matter or proceedings of a duly constituted tribunal. Learned counsel for the respondents has however argued in their brief that any court should not merely throw in the towel, for the simple reason that its jurisdiction has been ousted by the provisions of an Act. It is his submission that any court faced with such a legislation ought to first identify carefully the material facts of the case; and then consider whether those facts disclosed any features which show conformity vel non, with all the legislation relevant to the ouster of its jurisdiction.

It is his further submission that if upon the result of the enquiry, the court is satisfied that the provisions of the law relevant to the ouster of its jurisdiction were duly fulfilled, then the court must submit to the ouster of its jurisdiction. For this proposition, references were made in the respondents’ brief to several decided cases of this court, and decisions in the English Courts. But, for the purpose of this judgment, I would refer to the following cases:- Bode v. A.G. Federation (1986) 2 NWLR (Pt. 24) 568 at 577; Nwosu v.Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 933; Saidu Garba v. Federal Civil Service Commission (1988)1 NWLR (Pt.71) 449 at 478. Barclays Bank of Nigeria Ltd. v. Central Bank of’ Nigeria (1976) 6 S.C. 175; Doherty v. Balewa (1961) 2 SCNLR 256; (1961)2 NSCC 248 at 256-257; University of lbadan v. Adamolekun (1967) 5 NSCC 210; Lakanmi v. Attorney-General (West) (1974) 1 UILR (Pt.2) 201(1970)6 NSCC 143; NPA v Panalpina World Transport (Nig.) Ltd (1973) 8 NSCC 282; F.CD.A. v. Sule (1994) 3 NWLR (Pt. 332) 257; Agwuna v. A.-G., Federation (1995) 5 NWLR (Pt.396) 418; Guardian Newspapers Ltd v. A-U. Federation (1999)9 NWLR (Pt. 618) 187; Attorney-General Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Madukolu v. Nkemdilim (1962) 2 SCNLR 341(1962)1 ALL N.R. 587; Utih v. Onoyivwe (1991) 1 NWLR (Pt.166)166 at 243.

Before the principles that emerge from the above cases are considered, the facts relevant for consideration in the instant case ought to be set out. It is common ground that the respondents were remanded in custody for one year and two months before they were let out on bail. Though, after their arrest, they were arraigned before the tribunal, their trial had not commenced for one year and five months following their arraignment. Their learned counsel then submits that as the proceedings of the tribunal were governed by the Special Tribunal (Miscellaneous Offences) Act (Cap 410 LFN 1990) by virtue of section 4 of the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act (Cap 73), of LFN the appellants, as the prosecutor, and the Tribunal were clearly in breach of the provisions of sections 4, 5(5) & 6(1) of the Special Tribunal (Miscellaneous Offences) Act, when the proceedings were commenced against the respondents. It is further contended for the respondents that the court, of first instance, having regard to the contention of counsel on whether the jurisdiction of the court was ousted pursuant to the provisions of section 1(8) of Decree No.9 of 1991, properly referred certain questions to the court below. It is the further submission of learned counsel for the respondents that the court below was right to have held, having regard to the questions raised before it, that the ouster clause in Decree No.9 of 1991 will not apply to take away the supervisory jurisdiction of the High Court when the tribunal failed to abide strictly to its enabling statute. It is also his contention that the ouster clause will not apply where the tribunal sought to substitute its own procedure contrary to that laid down by the statute that governed it with respect to procedure for the trial of offences charged before it. Again, before I consider the argument of counsel dealing with whether the supervisory jurisdiction of the High Court has been ousted by the provisions of section 1(8) of Decree No.9 of 1991, may I refer to the view already held that the procedure for the prosecution and trial of offences under the Counterfeit and Fake Drugs (Miscellaneous Offences) Act (Cap. 73) LFN is as laid down in the various provisions of the Special Tribunal C (Miscellaneous Offences) Act, Cap 410 LFN. These provisions of the Act being sections 4, 5(4), 5(5) and 6(1), and which I have already reproduced in this judgment. I do not therefore need to make any further references to this point, and my reasons for arriving at that conclusion.

I will now consider the argument for and against the contention with regard to whether the supervisory jurisdiction of the High Court over the tribunals created to try the offences for which the respondents were charged, has been ousted by virtue of the provisions contained in section 1(8) of Decree 9 of 1991.

For the appellants, as already noted, the argument for the contention that the jurisdiction of the court was ousted, by reason of the provisions of section 1(8) of Decree 9 of 1991 rested mainly on the decision of this court in A-G. v. Dosunmu (supra). I have in this judgment set down the portion of the judgment of Oputa JSC, which does appear to support the contention of the appellants that the supervisory jurisdiction of the High Court has been ousted by the aforesaid provisions of section 1(8) of Decree 9 of 1991.

However, it is contended for the respondents that as the facts of Attorney-General v. Dosunmu (supra) cited in support of the appellants’ submission are distinguishable from those in the instant appeal, the dictum of Oputa JSC in Attorney-General v. Dosunmu (supra) cannot in the circumstances be held in support of the position of the appellants.

The main facts in the instant appeal have already been reiterated in this judgment and they will not be repeated, except as necessary to bring into focus the factors that distinguish the instant appeal from the Attorney General v. Dosunmu’s case (supra). In that case, the Government of Lagos State sometime in 1975 introduced a policy whereby no individual could own more than one plot of State land in Victoria Island, and not more than two at South West, Ikoyi. Pursuant thereto, a committee to compile a comprehensive list of persons who owned lands affected by the policy was set up. Based on the committee’s report, the Military Governor of Lagos State enacted Edict No.3 of 1976 (Determination of Certain Interests in Lands Edict) and LSLN No.9 of 1976 (Determination of Certain Interests in State Lands Order). As a result of the implementation of that Order, the interest of the Hon. Justice Dosunmu in plot No. 272, registered as LO. 7307 being one of the two plots owned by him in Victoria Island was determined. As the Hon. Justice Dosunmu was aggrieved with that determination of his interest, he challenged its forfeiture. It was his contention that the provisions of Edict No.3 of 1976 and Order No.9 of 1976 are unconstitutional, null and void because they are inconsistent with the provisions of Section 22(1) and 31(1) of the 1963 Constitution of Nigeria.

Thus upon those facts the Learned Counsel argued in the 1st respondents’ brief that in the Attorney-General v. Dosunmu’s case (supra), the challenge was against the validity of Edict No.3 of 1976 and Order No.9 of 1976. He further argued that in that case, there was no issue of non-compliance by the Commission of Inquiry with the law setting it up. The central issue in this appeal, and which remains the main plank of the contention of the respondents, is that the tribunal created for the trial of offences such as those for which the respondents were charged did not comply with the statute that created it. While there may be such a distinction as outlined above, it must be noted that that distinction does not appear to be part of the decision in Attorney General v. Dosunmu (supra).

However, be that as it may, the point that is in contention in this appeal is whether by reason of the ouster clause provisions in Decree No.9 of 1991, the High Court must simply decline jurisdiction without considering the ouster provisions in the con of the facts surrounding the particular case before it.

In the resolution of this question, it is desirable to recall that it is well settled principle having regard to the very many decided cases of this court that the word jurisdiction means the authority which a court has to decide matters before it or to take cognizance of matters presented before it for its decision. See: Ndaeyo v. Ogunnaya (1977) 1 SC 11. It must also be noted, that as all courts of record are creatures of statute, the unlimited jurisdiction granted to the Court by the constitution, as evidenced by section 236 (1) of the 1979 Constitution (applicable) in the con of this case, may be curtailed by the decree of the Federal Military Government. However whether the unlimited jurisdiction of the court was curtailed or not, the court must in whatever situation it finds itself bear in mind whether it has the competence to exercise its jurisdiction. In Madukolu v. Nkemdilim (1962) 1 All NLR. 587; (1962) 2 SCNLR 341, it has long been settled that a court has the necessary competence to exercise jurisdiction in a cause or matter, if it is

(a) properly constituted with respect to the number and qualification of its membership,

(b) the subject matter of the action is within its jurisdiction,

(c) the action is initiated by due process of law, and

(d) any condition to the exercise of its jurisdiction has been fulfilled.

In the case in hand, it is manifest from the provisions of the outer clause in Decree 9 of 1991, that the jurisdiction of the High Court was limited by virtue of the provisions therein. On whether the jurisdiction of the court was ousted by virtue of the provisions in Decree 9 of 1991, it is necessary to observe that this court had in several cases dealing with this question taken the position that where the jurisdiction of the court has been clearly ousted by a Decree or a Statute, the courts are obliged to uphold the ouster of its jurisdiction. Some of such decisions that represent this view, are as follows: Hope Harriman v Mobolaji Johnson (1970) All NLR 503; Adenrele Adejumo, Nigerian Construction Company Ltd. v. Col. Mobolaji Johnson (1974) 1 All NLR (2nd Edition Vol. 1) 26 at 30; Adejumo v. Military Governor of Lagos State (1972) 1 All NLR (Pt.1) 159; Uwaifo vAttorney General of Bendel State (1983) 4 NCLR 1; SODE v. Attorney General of the Federation (1990) 1 NWLR (Pt. 128) 500; at p. 518; Obada v.Military Governor of Kwara State (1990) 6 NWLR (PU57) 482; Labivi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Osadebey v. Attorney General of Bendel State (1991) 1 NWLR (Pt. 169) 533.

But, though the courts have in essence upheld the ouster clause in a decree or legislation, it would appear from the decided cases that the courts have always striven to guard and that jealously the sovereignty of the courts in the determination of the civil rights and obligations of the people of this Country. In this con may I quote the apt and pungent dictum of Obaseki JSC in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at P 638, which reads:

“Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the frame-work of recognised rules and principles which restrict discretionary power which Coke colorfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion’ (see 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive……….

The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria.”

It is pertinent to observe that before the observation above was made by Obaseki JSC, it is evident that the Supreme court has also expressed the view that while it will not challenge the right or the legal capacity or power of a military regime to make a Decree or Edict, it reserved the power to inquire into whether or not such Decree or Edict was consistent with the provisions of the Constitution. See: Barclays Bank v. Central Bank of Nigeria (1976) 6 S.C. 175; University of lbadan v. Adamolekun (1967) 5 NSCC 210. It would therefore appear that whereas the Court would ordinarily abide with an ouster provision of its jurisdiction, yet it would appear that before doing so, it reserves to it the right to consider whether the provisions of the ouster order were applicable in the circumstances. This point was made clearly in FCDA v SULE (1994) 3 NWLR (Pt.332) 257, when Adio JSC at page 285, observed that:-

“The provision in the Decree ousting the jurisdiction of the courts does not authorise application of the provisions of the Decree to public officers in case in which the provisions are inapplicable or flagrant disregard of the salient provisions in cases in which the Decree is applicable.”

And at page 286, he further made this pertinent observation:

“There is a misconception that however careless those concerned with the administration or the application of the provisions of Decree No. 17 of 1984 to public officers at administrative level might be, the provision of the Decree ousting the jurisdiction of the courts could always be relied upon or invoked to cover up such carelessness or irregularities even in cases of misapplication of the provisions of the Decree to public officers in circumstances in which it was obvious that the provisions were not applicable. In Garba v. Federal Civil Service Commission & Anor. (1988) 1 NWLR (Pt.71) 449, this Court notwithstanding the ouster provision, in the Decree, held that the provisions of the Decree were not applicable in the case of the interdiction of a public officer.”

It is manifest from the decided cases that I have referred to above that the principle has crystallized that where a legislation ousts the jurisdiction of the High Court, the court reserves to it the right to examine whether the provisions of the ouster clause, apply to the particular case in hand. In addition, it must be recognised that no discussion of this principle can be complete without reference to the latest pronouncement of this court on this question. The case under reference is A.G. Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187. In that case, Decrees No.8 and 12, namely, section 3 of the Guardian Newspapers and African Guardian Weekly Magazine (Proscription and Prohibition from Circulation) Decree No.8 of 1994, and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994 were enacted by the Federal Military Government. The effect of the promulgation of these decrees was that the publication of the Guardian Newspapers and the African Guardian Weekly were halted. After sometime they took action in the Federal High Court for the enforcement of their Fundamental Human Rights under the Fundamental Rights (Enforcement Procedure) Rules 1979. The learned trial Judge declined jurisdiction, having regard to the ouster clause in the decrees referred to above. That refusal and other questions were agitated on appeal in the Court of Appeal. His Lordship Ayoola JCA, (as he then was), formed the view that the Federal High Court should not have declined jurisdiction. On appeal to this court, Uwaifo JSC in the course of his judgment vide A.G. Federation v. Guardian Newspapers Ltd. (supra) at page 217, endorsed that decision and quoted with approval that part of the judgment of Ayoola JCA (as he then was), thus:-

“In this case even if the two instruments (Decrees No. 8 and No. 12 of 1994) are effective as Decrees, the Federal High Court ought not to have declined jurisdiction at the stage it did without further inquiry. Ouster of the jurisdiction of a court does not preclude it from exercising jurisdiction to interpret the ouster clause itself or to determine whether or not the action in question comes within the scope of power of authority conferred by the enabling statute”

Having regard to the cases reviewed above, I think, it can be said that a Court would be obliged to respect and uphold the ouster provisions of a decree or statute. But the court reserves to it the right to consider whether the ouster clause ought to be obeyed, having regard to other surrounding facts and the law relevant to the provisions ousting its jurisdiction.

In the instant case, the contention of the respondents is that both the Attorney-General of the Federation and the tribunal did not exercise the right to prosecute the charges levelled against the respondents as provided for in the Special Tribunal (Miscellaneous Offences) Act as amended (Cap. 410 LFN 1990), particularly, Sections 4, 5(5) and 6(1) thereof, that I have earlier held in this judgment apply to the prosecution and trial of the offences for which the respondents were charged before the tribunal.

The question then is whether the High Court should not, having regard to the facts presented to it, consider whether proceedings before the tribunal have been properly initiated and conducted before it, in accordance with the Statutes that created it.

It seems to me that where as in this case questions are raised as to whether the proceedings before the tribunal have been properly initiated in accordance with the law that set up the trial before the tribunal, the ouster of the jurisdiction of the Court should not preclude it from exercising jurisdiction to interpret the ouster clause or to determine or not the proceedings in question comes within the scope of power of authority conferred by the enabling statute.

I would therefore uphold the view held by the court below that though the jurisdiction of the High Court appear ousted by virtue of the provisions of Decree No.9 of 1991 the court is not precluded from considering whether in the circumstances the ouster jurisdiction comes within the scope of power of authority conferred by the enabling statute. This issue is therefore resolved in favor of the respondents. I would therefore uphold the view held by the Court below. This issue is therefore resolved in favour of the respondents.

I now will consider issue 2 raised in the appellants’ brief. The question that was raised in that issue is whether the provisions of sections 4, 5(5) and 6(1) of Special Tribunal (Miscellaneous Offences) Act, Cap. 410 L.F.N.1990 is applicable to the trial of offences created under Counterfeit and Fake Drugs (Miscellaneous Provisions) Act Cap 73 L.F.N. 1990.

The main argument advanced for the appellants is that the provisions of Sections 4, 5(5) and 6(1) are confined to offences created under the Special Tribunal (Miscellaneous Offences) Act (supra). In effect, it is argued for the appellants that offences charged under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act (supra), are not subject to the provisions enacted in the Special Tribunal (Miscellaneous Offences) Act (supra). It is further argued for the appellants that though it is provided in section 4 of the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act (supra), that the tribunal established under the Special Tribunal (Miscellaneous Offences) Act, shall exercise jurisdiction to try offences charged under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act (supra), does not in law make for the application of sections 4, 5(5) and 6(1) of the provisions in Cap 410 (supra). It is the contention of learned counsel for the appellants that if the makers of the law wanted the said sections of Cap 410 to apply, they would have made specific provisions in Cap 73 (supra), to that effect.

For the respondents, it is the submission of their learned counsel that the contention of the Learned Counsel for the appellants, that the provisions of the Special Tribunal (Miscellaneous Offences) Act Cap 410, are inapplicable to the prosecution and trial of offences created under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act is erroneous. The contention of the learned counsel for the respondents that the provisions of the Special Tribunal (Miscellaneous Offences) Act, is applicable is premised on the view that as the procedure by which offenders are to be tried was not provided for in Decree No. 17 of 1989 (Cap 73 L.FN. 1990), that lacuna was filled by section 4 of the Decree (Cap. 73 LFN. 1990). It is therefore further submitted that it was the intention of the law makers to incorporate the Special Tribunal (Miscellaneous Offences) Act Cap 410 into the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act (Cap 73) by reference. The effect then of that incorporation is that the Special Tribunal that will try offences relating to Counterfeit and Fake Drugs will adopt and follow the procedure laid down in the Special Tribunal (Miscellaneous Offences) Act Cap 410 of the Laws of Federation of Nigeria, 1990.A careful reading of this Act would disclose that detailed provisions were made for the rules of procedure that have to be followed when prosecuting offences brought before the tribunal. For present purposes, references would be made to Section 4, sub sections 4 and 5 of section 5 and section 6(1) of the Act. They read thus:-

“4 Police investigation into cases relating to offences under this Act shall be concluded not later than 28 days after the arrest of the accused person and particulars of such investigation shall be sent to the Attorney-General of the Federation not later than 7 days after the conclusion of Police investigation.

5(4) Where the rules of procedure contained in the Schedule to this Act contain no provisions in respect of any matter relating to or connected with the trial of offences under this Act, the provisions of the Criminal Procedure Code or depending on the venue, the Criminal Procedure Act shall with such modification as the circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally.

5(5) Prosecution for offences under this Act shall be instituted within 14 days after the receipt by the Attorney-General of the Federation of the file containing completed police investigation in respect of the offence.(Italic mine).

6(1) Proceedings in respect of offences under this Act shall be concluded by the tribunal within 14 days of its first sitting. (Italics mine).

Bearing in mind the meaning ascribed to the word ‘shall’ it is manifest from the above provisions of the Special Tribunal (Miscellaneous Offences) Act, that the law makers deliberately set down a time frame which is imperative for the investigation by the police, consideration of the merits of the investigation, and the trial of offences that were meant to be heard and determined by any Tribunal set up under the provisions of the Special Tribunal (Miscellaneous Offences) Act (supra).

It seems to me that having regard to the contention of learned counsel for the appellants that offences created under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act are not triable by the Tribunal created by virtue of the provisions of the Special Tribunal (Miscellaneous Offences Act) (supra), it is necessary to refer to the nature of the accusation made against the respondents, and the venue where they were charged.

The record of proceedings show that the respondents were charged before the Miscellaneous Offences Tribunal as reproduced hereunder:-

STATEMENT OF OFFENCE

Possession of adulterated drug contrary to section 1(a) of the Counterfeit and Fake Drugs (Miscellaneous Provisions) Decree No. 17 of 1989 and thereby committed an offence punishable under section 3(1) (a) of the same Decree.

PARTICULARS OF OFFENCE

(1) NWAMMIRI. EKPE OKOROAFOR

(2) ANAYO J. AKAMNONU

On or about the 12th day of July, 1989 at 31 Fauks Road, Aba thereby committed an offence.

COUNT 2

STATEMENT OF OFFENCE

Possession of adulterated drug contrary to section 1(a) of the Counterfeit and Fake Drugs (Miscellaneous Provisions) Decree No. 17 of 1989 and thereby committed an offence punishable under section 3(1) (a) of the same Decree PARTICULARS OF OFFENCE

(1) NWAMMIRI EKPE OKOROAFOR

(2) ANAYO J. AKAMNONU

On or about the 12th day of July, 1989, at 31 Faulks Road Aba, in Imo State did possess adulterated drug to wit:

NIROK VITAMIN C SYRUP

AND THEREBY committed an offence.

It is beyond dispute from the above that the appellants charged the respondents before the Miscellaneous Offences Tribunal as reproduced above for offences created by the Counterfeit and Fake Drugs (Miscellaneous Provisions) Decree No. 17 of 1989 Cap. 73 of the Laws of the Federation of Nigeria (1990). In order to consider whether the respondents were improperly charged or not before the miscellaneous offences tribunal, it is relevant to reproduce the provisions of section 4 of the Counterfeit and Fake Drugs Miscellaneous Provisions) Act (supra). It reads:

“The Tribunal established under the Special Tribunal (Miscellaneous Offences) Act, as amended, shall have the jurisdiction to try offenders under this Act”.

There can be no doubt from a close reading of the above provisions of this Act, that the intention of the law makers was that offences brought before a tribunal created under the Act for the trial of offences brought before it must be prosecuted with deliberate speed as set out in its provisions. By the provisions made in the said Act, the prosecution of offences intended to be charged before the tribunal shall be instituted within 14 days after the receipt by the Attorney-General of the Federation of the file containing completed police investigation in respect of such offences. Before the matter is referred to the Attorney-General, the police authorities are not to spend more than 28 days investigating the offences. And the Tribunal must within 14 days of its first sitting conclude the proceedings in respect of such offences charged before it.

The procedure for the prosecution and the trial of offences for trial under any tribunal created under Special Tribunals (Miscellaneous Offences) Act, are no doubt a clear departure from that generally followed in the trial of offences in the ordinary courts. But there can be no question that the law makers intended that all offences that fall within those triable in a tribunal so created must strictly be followed by those concerned with the prosecution and trial of such offences.

In the instant appeal, it is conceded that the appellants are not challenging the provisions of this Act with regard to the rules set down for the prosecution of cases brought before the Tribunal created under the Act. It is however the contention of the learned counsel for the appellants that the provisions of this Act do not apply to the prosecution of offences under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act. Cap 73 of the Laws of the Federation of Nigeria 1990. It would appear from that contention of the appellants that the procedure for the prosecution and determination of offences charged under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act, was intended to be that followed in the prosecution and trial of criminal offences, such as those in the Criminal Code, where time is not of the essence in the prosecution of such cases.

Now, as previously stated, the learned counsel for the respondents has argued that the position taken by the learned counsel for the appellants on this question cannot be right. The question then is whether the learned counsel for the respondents is right in his submission that though the offences were created under the Counterfeit and Fake Drugs (Miscellaneous Provisions Act), the procedure for investigating, prosecuting and the trial of such offences as those for which the respondents were charged, was vested in the provisions enacted in the Special Tribunal (Miscellaneous Offences) Act Cap. 410 by virtue of section 4 of the Counterfeit and Fake Drugs Act. In order to answer this question it is necessary to refer to the principles governing the interpretation of statutes generally.

It is generally acknowledged that the Court faced with the interpretation of a statute has a duty to first discover the intention of the lawmakers. This has to be discovered from the words used in their ordinary and natural sense – when there is no doubt or ambiguity about their meaning. As was said in Barrell v. Fordree (1932) A.C. 676 at 682 per Lord Warrington of Clyffe: ” … the safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases.” See also International Bank for West Africa Ltd v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt.85) 633;Salami v. Chairman L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 -550- 551; Aqua Ltd. v. Ondo State Sports Council (1988) 4NWLR Pt.91) 622 at 641.

The House of Lords had reason to consider this question in Ingle v. Farrand 1927AC 417 at page 428, Lord Atkinson said thus:

“Your Lordships were referred to several authorities laying down the principle upon which the question should be determined whether a statute acts retrospectively or not. Amongst those authorities the case of Smith v. Callander (1990) A.C 297 and Lindley L.J’s judgment in Lauri v. Renad (1892)3 Ch. 402, 421 were included. The rule which according to those authorities is to be applied is thus stated in Maxwell on Statutes, P. 382. It is a fundamental rule of English Law that no statute shall be construed so as to have a retrospective operation unless such a construction appears very clearly in their terms of the Act, or arises by necessary and distinct implication.”

Having regard to the principle enunciated above, it seems that there is no doubt that the law makers by the provisions made in section 4 of the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act, the intention was made clear that the procedure for the prosecution and trial of offences under the 1973 Act, would be in accordance with the provisions made in the Special Tribunals (Special Provisions) Act Cap 410 of the Laws of the Federal Republic of Nigeria 1990.

The argument proffered by the learned counsel for the respondents that the provisions made in the Special Tribunals (Special Provisions) Act Cap 410 of Laws of the Federal Republic of Nigeria, 1990 should be read as having been incorporated retrospectively, provisions of the Food and Drugs Special Provisions Act Cap 73 of 1990, has merit. I will therefore for all the reasons given hold that the provisions made in the Special Tribunals (Special Provisions) Act, Cap 410 of the Laws of Nigeria 1990, apply to the trial by a Tribunal of offences charged under the Counterfeit and Fake Drugs (Miscellaneous Provisions) Act Cap 73 of the Laws of Nigeria 1990.

The enactment of a time frame is, of course, a departure from the normal practice in the prosecution of cases of this kind. This is because of the erstwhile prevailing view that in the prosecution of criminal cases time does not run against the State. However, it seems clear that by this legislation a deliberate departure was made by the law makers to make time of the essence in the prosecution of the cases arising from the law so enacted. It must also follow that where the State, on whose behalf the Attorney-General undertakes the prosecution of cases failed to observe and maintain the time frame laid down for the prosecution of cases for trial in the tribunal, then that failure to keep within the time frame may, in my view lead to the discharge of the accused upon a proper application made to that effect.

The 3rd issue raised in the appellants’ brief is whether the Court of Appeal was right to have made in the course of its judgment, the following observation:

“In this case before us there has been flagrant disobedience of the law of the land by the agencies authorised to effectuate it. Therefore neither the Tribunal nor the prosecution can take shelter under the ouster clause”

The contention of learned counsel for the appellants appears to be that the observation so made went beyond the scope of the question raised before the court. He supported his contention by the views of this court in Attorney-General of Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) at 396. There is no doubt the principle that in the hearing and determination of an interlocutory matter, the court ought to refrain from making pronouncement touching upon the main issue that would have to be decided between the parties.

In this matter, the observation so made, having regard to the materials presented to the court, was only a reflection of the court on the material before it. I do not in my humble view therefore consider that that observation would inhibit a Court that has to determine the real issues between the parties. I therefore do not consider that there is any merit in this issue. It is dismissed.

Finally, the appellants have questioned whether by the Court of Appeal rules brief writing is required and/or necessary to file a brief pursuant to the reference made to the Court of Appeal in respect of this matter. For the appellants their learned counsel contends that though Order 6 rule 2 of the Court of Appeal Rules and Order 8 Rule 5(1) of the Supreme Court Rules, (as amended), provide for the writing of briefs their use is limited to when substantive appeals fall to be heard and determined in those courts. For that contention, reference was made to Ibero v. Obioka (1994) 1 SCNJ 44 at 54; (1994) 1 NWLR (Pt. 322) 503 at 519.

There can be no doubt that the preparation of briefs in support of arguments is as limited in the Rules of Court referred to above. But then, learned counsel, apparently recognised the futility of his appeal in respect of this issue. This is apparent from the relief he wants in respect of this issue as learned counsel for the appellants has asked in the appellants’ brief not to dismiss and/or strike out the reference on account of the brief. Rather he contends that the court should uphold their submission that it is not, proper for an applicant without more to file a brief of argument while making a reference to the court below.

It is clear that the rules of the Court of Appeal do not provide for the filing of briefs in respect of the matter under consideration. However, it is not enough in my humble view to dismiss an appeal simply because a brief of argument was filed as was done in the instant matter. The appellants should have gone further to show that they suffered a miscarriage of justice because of the brief so filed. It must be borne in mind that the writing of briefs came into existence in order to assist the court in the determination of issues raised before it. And if properly considered a clear and reasoned argument of counsel in respect of issues in a brief, would certainly help both sides to articulate their conflicting contentions. The fact that one of the parties had as in this case presented his argument in a brief for the Court and obviously also opposing counsel, without showing what disadvantage, if any that the opposing counsel suffered as a result is not in my view, sufficient to set aside the judgment of the lower court.

Before concluding, it is necessary to remind counsel particularly those who are in the Ministries of Justice that they are obliged by virtue of their employment to maintain a very high standard of professional conduct in the discharge of their duties. It is expected of them to be very conversant with the provisions of the law that are relevant to the matter they are called upon to prosecute or defend. The courts can then find them a dependable ally in the dispensation of justice.

In conclusion, from the several reasons given above, this appeal is devoid of any merit. And it is dismissed in toto. I will make no order as to costs.

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SC.31/1997