dr. olubukola abubakar saraki … dr. olubukola abubakar saraki appellant and federal republic of...
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DR. OLUBUKOLA ABUBAKAR SARAKI APPELLANT
AND
FEDERAL REPUBLIC OF NIGERIA RESPONDENT
CA/A/551C/2015
COURT OF APPEAL
MOORE A. A. ADUMEIN JUSTICE COURT OF APPEAL
JOSEPH E. EKANEM JUSTICE COURT OF APPEAL
MOHAMMED MUSTAPHA JUSTICE COURT OF APPEAL
AT ABUJA, ON FRIDAY 30TH OCTOBER, 2015
ADMINISTRATIVE LAW ‐ Attorney-General of the Federation – Source of or creation of
ADMINISTRATIVE LAW ‐ Attorney-General of the Federation – Functions and duties of – Exercisability thereof
ADMINISTRATIVE LAW ‐ Attorney-General of the Federation – Status of
ADMINISTRATIVE LAW ‐ Powers of the Attorney General of the Federation – Whether in the exercise of the power by the Solicitor-General – Whether can delegate same on any officer in the Ministry of Justice.
ATTORNEY GENERAL ‐ Attorney-General of the Federation – Source of or creation of
ATTORNEY GENERAL ‐ Attorney-General of the Federation – Status of
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ATTORNEY GENERAL ‐ Powers of the Attorney-General of the Federation – Whether exercisable by the Solicitor-General in the absence of the Attorney General
ATTORNEY GENERAL OF THE FEDERATION ‐ Attorney-General of the Federation – Function and duties of – Exercisability thereof
BAILIFF ‐ Failure to serve – Effect of
CODE OF CONDUCT ‐ Code of conduct Bureau and Tribunal – Powers of under section 23 of the Act
CODE OF CONDUCT ‐ Code of Conduct Bureau and Tribunal – Whether the provisions of Interpretation Act are applicable therein
CODE OF CONDUCT BUREAU – Issuance of Bench warrant – Whether can so do to compel the attendance of the accused.
CODE OF CONDUCT BUREAU AND TRIBUNAL – Minimum number thereof – Need to resort to Interpretation Act.
CONSTITUTION – Paragraph 15 (1) of the fifth schedule to the 1999 Constitution – Interpretation of.
CONSTITUTIONAL LAW ‐ Issuance of Bench warrant – Whether can so do to compel the attendance of the accused.
CONSTITUTIONAL LAW – Powers of the Attorney-General of the Federation – Whether exercisable by the Solicitor-General in the absence of the Attorney General
CONSTITUTIONAL LAW – Attorney-General of the Federation – Functions and duties of – Exercisability thereof
CONSTITUTIONAL LAW – Attorney-General of the Federation – Source of or creation of
CONSTITUTIONAL LAW – Attorney-General of the Federation – Status of
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CONSTITUTIONAL LAW – Powers of the Attorney-General of the Federation – Whether in the exercise of the power by the Solicitor-General – Whether can delegate same on any officer in the Ministry of Justice.
COURT ‐ Academic exercise – Need for court not to engage therein.
COURT ‐ Code of Conduct Bureau and Tribunal – Whether can exercise criminal jurisdiction.
COURT – Non-Service or improper service – When may be waived.
COURT ‐ Powers of the Attorney-General of the Federation – Whether exercisable by the Solicitor-General in the absence of the Attorney-General.
COURT ‐ Section 101 of the Criminal Procedure Act and Section 136 (a) of the Administration of Criminal Justice Act, 2015 Effect of – Where the accused alleges improper service.
COURT – Tribunal – Whether can be said to be a court – Difference thereat.
COURT PROCESS ‐ Court Summons – Need to serve personally
COURT PROCESS – Failure to service – Effect of
COURT PROCESS ‐ Section 101 of the Criminal Procedure Act and Section 136 (a) of the Administration of Criminal Justice Act, 2015 Effect of – Where the accused alleges improper service.
CRIMINAL LAW ‐ Code of Conduct Bureau and Tribunal – Whether can exercise criminal jurisdiction.
CRIMINAL LAW ‐ Criminal trial – How distinguished from court trial – Feature of.
INTERPRETATION OF STATUTES ‐ Code of Conduct Bureau and Tribunal – Whether the provisions of Interpretation Act are applicable therein.
INTERPRETATION OF STATUTES – Golden Rule – Purport of
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JUDGES – Lawyers speaking from the bar- Need for judges to believe same.
JUDGES ‐ Where there are difficulty in knowing where the law stands for –
Attitude of judges thereat.
JURISDICTION ‐ Code of Conduct Bureau and Tribunal – Whether can exercise criminal jurisdiction.
LAW – Where there are difficulty in knowing where the law stands for – Attitude
of judges thereat.
LEGAL PRACTITIONERS – Lawyers speaking from the bar - Need for judges to believe same.
NOTABLE PRONOUNCEMENT – Lawyers speaking from the bar - Need for judges to believe same
PRACTICE AND PROCEDURE ‐ Academic exercise – Need for court not to engage therein.
PRACTICE AND PROCEDURE ‐ Code of Conduct Bureau and Tribunal – Whether can exercise criminal jurisdiction.
PRACTICE AND PROCEDURE – Court Summons – Need to serve personally.
PRACTICE AND PROCEDURE – Criminal trial – How distinguished from court trial – Feature of.
PRACTICE AND PROCEDURE ‐ Failure to service – Effect of.
PRACTICE AND PROCEDURE ‐ Issuance of Bench warrant – Whether can so do to compel the attendance of the accused.
PRACTICE AND PROCEDURE ‐ Non-Service or improper service – When may be waived.
PRACTICE AND PROCEDURE ‐ Powers of the Attorney General of the Federation – Whether exercisable by the solicitor General in the absence of the Attorney General.
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PRACTICE AND PROCEDURE ‐ Section 101 of the Criminal Procedure Act and Section 136 (a) of the Administration of Criminal Justice Act, 2015 Effect of – Where the accused alleges improper service.
SOLICITOR GENERAL ‐ Powers of the Attorney General of the Federation – Whether in the exercise of the power by the Solicitor General – Whether can delegate same on any officer in the Ministry of Justice.
STATUTES ‐ Paragraph 15 (1) of the fifth schedule to the 1999 Constitution – Interpretation of.
STATUTES – Section 101 of the Criminal Procedure Act and Section 136 (a) of the Administration of Criminal Justice Act, 2015 Effect of – Where the accused alleges improper service.
TRIBUNAL ‐ Code of conduct Bureau and Tribunal – Powers of under section 23 of the Act
TRIBUNAL ‐ Tribunal – Whether can be said to be a court – Difference thereat.
TRIBUNAL – Code of Conduct Bureau and Tribunal – Whether can exercise criminal jurisdiction.
TRIBUNAL – Code of Conduct Bureau and Tribunal – Whether the provisions of Interpretation Act are applicable therein.
TRIBUNAL – Code of Conduct Tribunal – Minimum Number thereof – Need to Resort to Interpretation Act
TRIBUNAL ‐ Issuance of Bench warrant – Whether can so do to compel the attendance of the accused
LEAD JUDGMENT
As Delivered By MOORE A. A. ADUMEIN, JCA
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On the 11th day of September, 2015 a deputy director in the office of the Attorney-General of the Federation filed an application, supported with an affidavit of 12 paragraphs, in the Code of Conduct Tribunal, sitting in Abuja, asking for the commencement of trial of sundry charges brought against the appellant - Dr. Olubukola Abubakar Saraki. Attached to the application is a charge containing 13 (thirteen) counts, the proof of evidence and the list of witnesses. See pages 1 to 892 of the record of appeal.
The application filed by M. S. Hassan, Esq. was granted by Mr. Danladi Yakubu Umar - Chairman of the Conduct of Code Tribunal (hereinafter called "the Tribunal") who sat with one member of the Tribunal - Mr. Agwadza W. Atedze. While granting the application, the Tribunal directed "that the accused be summoned to appear before the Tribunal and plead to the accompanying charge against him". Summons was accordingly issued commanding the appellant to appear before the Tribunal on the 18th day of September, 2015 in Case No. CCT/ABJ/01/2015. On the 17th day of September, 2015 the learned counsel for the appellant filed an application in which the appellant urged the Tribunal to grant him the following prayers:
"i. An Order quashing and/or striking out the charges contained in the charge dated 14th September, 2015, filed by the complainant/respondent against the applicant with Charge No - CCT/ABJ/01/2015 amongst others.
ii. An Order pursuant to paragraph 1 above, discharging the accused/applicant herein.
iii. And for such further Order/Orders as this honourable Tribunal may deem fit to make in the circumstances."
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The appellant's motion on notice was supported with an affidavit of 8 paragraphs and a written address. The respondent filed a counter affidavit of 8 paragraphs accompanied by written arguments.
After hearing the parties on the appellant's said application, the Tribunal delivered its ruling on that 18th day of September, 2015 whereby it dismissed the application. The Tribunal, by its said ruling, also issued a bench warrant by which the Inspector General of Police was ordered to arrest and produce the appellant in the Tribunal on Monday, the 21st day of September, 2015. This appeal is against the said ruling and it was argued on the notice of appeal filed on 02/10/2015 and anchored on 5 (five) grounds.
While arguing the appeal, the learned senior counsel for the appellant adopted and relied on their brief filed on 06/10/2015 and the reply brief filed on 14/10/2015 and urged the court to allow the appeal. The learned senior counsel for the respondent, on the other hand, urged the court to dismiss the appeal for lack of merit. In saying so, the learned senior counsel adopted and relied on the respondent's brief dated 12/10/2015 and filed on the same date.
In his brief filed on 06/10/2015, the appellant formulated the following issues for determination:
1. "Whether in hearing and determining all the issues that culminated in its decision of the 18th of September 2015, the Code of Conduct Tribunal was properly constituted in law 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 void and of no consequence? (Issue No. 1) (Ground 1)"
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2. "Whether the Code of Conduct Tribunal is a court of 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 2)"
3. "Having regard to the clear wording of section 24-(2) 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 3)"
4. "Whether there was proper service in law on the appellant of the criminal summons to appear before the Code of Conduct Tribunal on the 18th of September 2015 and if answered in the negative whether the order for Bench Warrant and all other proceedings are not altogether null and void? (Issue No. 4) (Ground 4)"
5. "Whether the Code of Conduct Tribunal was right in law to have ignored the order of the Federal High Court asking it to appear before him to show cause why the interim orders staying proceedings would not be made against it on the ground that both the Tribunal and the FHC were courts of coordinate jurisdiction? (Issue No. 5) (Ground 5)."
In his brief, learned senior counsel for the respondent also framed five issues for determination. The issues are:
"1. Whether the Code of Conduct Tribunal was not properly constituted when it heard and determined the issues that culminated in its ruling of 18th September, 2015 as to warrant its proceedings of the said day being declared null and void (see ground 1 of the notice of appeal).
2. Whether the Code of Conduct Tribunal was not competent to issue a bench warrant against the appellant on account of his failure to appear before it (see ground 2 of the notice of appeal).
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3. Whether the charge preferred against the appellant is not competent merely because there was no sitting Attorney-General of the Federation at the time it was initiated (see ground 3 of the notice of appeal).
4. Whether the lower Tribunal was not right when it held that the appellant had been duly put on notice of the proceedings before the Tribunal (see ground 4 of the notice of appeal).
5. Whether the lower Tribunal was not right when it held that it would not halt the proceedings before it merely because the appellant had filed a suit before the Federal High Court (see ground 5 of the notice of appeal)."
The issues identified by both the appellant and the respondent are basically and substantially the same, but I adopt the issues formulated by the appellant for the determination of this appeal. I will, however, treat Issue No. 4 first, since it borders on jurisdiction; although some of the other issues also relate to the competence and jurisdiction of the Tribunal thereafter, I will take and treat the issues in the following order - Issue Nos. 1, 2, 5 and 3.
We heard this appeal on Friday, the 16th day of October, 2015 and reserved judgment for Monday, the 19th day of October, 2015. However, we could not deliver judgment until today because we had to labour to reach a consensus. This is not unusual in cases, causes or matters heard by a panel of distinguished jurists. As a fact, it had been so for more than a century. Please hear what our elder brother had to say:
"There may be cases in which there is so much of difficulty in
knowing where the law stands that we take time to consider,
and sometimes doubt much and sometimes differ among
ourselves. But I believe every one of the Judges acts upon the
principle that he is before man and God in the discharge of his
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duty, and acts upon his solemn oath, and declares the law not
according to any political fancy, or for the purposes of serving
one party or serving another, but according to the pure
conviction of his own mind..." ‐ per Bayley, J., Case of Edmonds
and others (1821), 1 St Tr. (N. S.) 899.
ISSUE 4
The learned senior counsel for the appellant argued that, under sections 87 - 89 of the Criminal Procedure Act, the appellant ought to be personally served with the summons issued by the Tribunal. Learned senior counsel contended that even the Tribunal disclosed, in its ruling, that the proof of service was acknowledged by one Ibrahim El-Sadi, Special Adviser on Legal and Constitutional Matters to the Senate President, who signed and collected the processes on the 16th day of September, 2015. He argued that the service was defective. The learned senior counsel urged the court to set aside the service of the summons on the appellant.
In his response, the learned counsel for the respondent argued that there is a difference between improper service and non-service. He argued that the appellant has waived the irregularity of improper service by not timeously raising "the issue of non-service and he never applied to have same set aside". The learned senior counsel stated further that:
"In the instant case, the appellant who received the summons through his Adviser on Legal and Constitutional Matters on 16th September, 2015 and filed a motion challenging the charge preferred against him without raising any issue of non-service and who subsequently appeared before the Tribunal and took his plea on 22nd September, 2015 can no longer in the notice
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of appeal he filed on 2nd October, 2015 raise the issue of non-service of summons on him."
Mr. Rotimi Jacobs (SAN), learned senior counsel for the respondent, referred to section 1.01 of the Criminal Procedure Act; section 136(a) of the Administration of Criminal Justice Act, 2015 and the cases of IGP v. Ehiguase (1957) WRNLR 129; Okotie v. C.O.P. (1959) SCNLR 303 at 306 ‐ 307 and
State v. Osier (1991) 6 NWLR (Pt. 199) 576 at 588 and argued that the defect or irregularity in service cannot affect the trial of the appellant.
The appellant was accused, charged and arraigned in his personal capacity and
not in his official capacity or position as the President of the Senate of the
Federal Republic of Nigeria. Having been summoned in his personal or private
capacity, the summons issued by the Tribunal, being an originating process,
ought to have been served on the appellant personally. See section 89(a) of the
Criminal Procedure Act which makes it mandatory for the summons to be served
personally on the appellant.
It is settled law that where service is required, as in this case, failure to effect
service is a fundamental vice which deprives the court of its jurisdiction to hear
the case. See Mohammed Wlari Kida v. A. D. Ogunmola (2006) 13 NWLR (Pt. 997)
377 at 396; Odutola v. Kayode (1994) 2 SCNJ 21 at 29 and New Nigerian
Newspapers v. Oteh (1992) 4 NWLR (Pt. 273) 626.
Where, however, a defendant or his counsel appears in court and fails to raise
the issue of non‐service or improper service, he would be subsequently estopped
from raising the issue of non‐service or improper service. See Odutola v. Kayode (supra); (1994) 2 NWLR (Pt 324) 1 and Obimonure v. Erinosho (1966) 1 All NLR
250.
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Under section 101 of the Criminal Procedure Act, Cap. C42, Laws of the
Federation of Nigeria, 2004 where an accused or a defendant appears before a
court, whether voluntarily or otherwise, the trial can be held notwithstanding
any irregularity in service. See also section 136(a) of the Administration of
Criminal Justice Act, 2015.
In the present case, the appellant has since appeared before the Tribunal to
plead to the allegations levelled against him without raising the issue of
improper service or non‐service. Therefore, the issue of improper service shall be
treated as an irregularity which does not vitiate the trial of the appellant by the
Tribunal.
For the reasons given above, I hereby resolve this issue in favour of the respondent against the appellant.
ISSUE 1
The substance of the appellant's argument on this issue is that, since paragraph 15(1) of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that the Code of Conduct Tribunal shall consist of a Chairman and two members, the Tribunal was not properly constituted when only its Chairman and one member sat over the case and delivered the ruling, which is the subject matter of this appeal. Relying on the cases of Amasike v. Registrar General,
CAC (2006) 3 NWLR (Pt. 968) 462 and Ngige v. Obi (2006) 14 NWLR (Pt 999) 1, the appellant submitted that the words of the said constitutional provision being clear and unambiguous, should be given their natural and literal meaning. The appellant also referred to and relied on section 20(2) of the Code of Conduct Bureau and Tribunal Act, 2004 which has provisions similar to those of paragraph 15(1) of the Constitution.
Learned senior counsel for the appellant contended that by virtue of paragraph 15(1) of the Constitution, "for the Code of Conduct Tribunal to
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be legally functional, there must be at least three persons inclusive of its Chairman". He also referred to paragraph 12 of the Third Schedule to the Code of Conduct Bureau and Tribunal Act which requires that notes of the proceedings of the Tribunal "shall be signed by the Chairman and not less than two other members of the Tribunal including the person who took down the notes, at the conclusion of each day's proceedings". He opined that the use of the word "shall" in both the Constitution and the Code of Conduct Bureau and Tribunal Act conveys the intention of the legislature that the Tribunal should have not less than three members, including its Chairman. The learned senior counsel relied on the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 34 and contended that the Tribunal was not competent and had no jurisdiction because it was not properly constituted as regards its members.
The learned senior counsel for the appellant argued that the provisions of sections 27 and 28 of the Interpretation Act were not applicable to this case because the Constitution and the Code of Conduct Bureau and Tribunal Act "contain elaborate provisions by which the applicability of the provisions of the Interpretation Act is negated."
On the other side, the learned senior counsel for the respondent argued that the words used in the Constitution and section 20(2) of the Code of Conduct Bureau and Tribunal Act in respect of the number of persons making up the Tribunal are "consist of and not "quorum". He submitted that where words in a statute are precise and unambiguous they should be given their ordinary grammatical meaning. On this point, learned senior counsel referred to the cases of Obioha v. Dafe (1994) 2 NWLR (Pt. 325) 157; Odu'a Invest. Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22; Okhae v. Governor, Bendel State (1990) 4 NWLR (Pt 142) 327 and Bronik Motors v. Wema Bank (1983) 1 SCNLR 296.
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On the meaning and difference between the words "consist" and "quorum", the learned senior counsel referred the court to New Webster's Dictionary of English Language, International Edition page 208.
He argued that paragraph 15(1) of the. Fifth Schedule to the Constitution or section 20 of the Code of Conduct Bureau and Tribunal Act "has nothing to do with the quorum of the Code of Conduct Tribunal while entertaining cases". He argued that section 28 of the Interpretation Act would apply in determining the quorum of the Code of Conduct Tribunal. Learned senior counsel submitted that the Interpretation Act is applicable to the Constitution. On this point, he referred the court to section 318(4) of the Constitution and the case of A.G.; Federation v. A.G.; Anambra State
(No. 2) (2002) 6 NWLR (Pt 764).
I have read paragraph 15(1) of the First Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 20(2) of the Code of Conduct Bureau and Tribunal Act. The provisions are identical. For the sake of clarity, paragraph 15(1) of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides
that:
"There shall be established a tribunal to be known as Code of
Conduct Tribunal which shall consist of a Chairman and two other
persons."
The above provision is very clear, plain and unambiguous and should be given
its ordinary, grammatical meaning. This is in accordance with the golden rule of
interpretation of statues and statutory instruments. See the cases of Rabiu v. The State (1981) 1 NCLR 293 and Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199.
In the case of Nicholas Chukwujekwu Ukachukwu v. Peoples Democratic Party & 3
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Ors. (2014) 17 NWLR (Pt. 1435) 134 at 180,the Supreme Court re‐echoed, per
Kekere‐Ekun, JSC, as follows:
"The golden rule of interpretation of statutes is that where the
words used are clear and unambiguous they must, prima facie, be
given their natural and grammatical meaning unless it would
lead to absurdity”
Paragraph 15(1) of the Fifth Schedule to the Constitution of the Federal Republic
of Nigeria, 1999 (as amended) and section 20(2) of the Code of Conduct Bureau
and Tribunal Act, 2004 merely provide for the establishment of the Tribunal and
its composition. There is no provision in both the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) and the Code of Conduct Bureau and
Tribunal Act, 2004 specifying the minimum number of members of the Tribunal
who must be present before the: Tribunal can validly undertake and or conduct
its judicial business‐ proceedings or sittings. Therefore, there is a lacuna in the
Constitution and the Act. In a situation like this, the Interpretation Act becomes
a very helpful piece of legislative ingenuity to fill the gap or lacuna.
The learned senior counsel for the appellant has argued that the Interpretation Act does not apply to this case. I do not agree with this submission because there is nothing in both the Interpretation Act and the Code of Conduct Bureau and Tribunal Act which excludes the application of the provisions of the former Act to the latter. By section 318(4) of "the 1999 Constitution (as amended), the Interpretation Act has been specifically made applicable for the purposes of interpreting the provisions of the Constitution. Since there is a gap in the provisions of paragraph 15 of the Fifth Schedule to the Constitution, the Interpretation Act is the available legislative tool to fill this lacuna. For the avoidance of any doubt, section 28 of the Interpretation Act provides as follows:
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"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 there from) shall not be less than two (including the chairman): Provided that the chairman and the member shall b& present at every sitting of the tribunal commission of inquiry throughout the duration of the trial or hearing."
The provisions of the Interpretation Act, without any legal impediments or
obstacles, are smoothly applicable to the provisions of the Code of Conduct
Bureau and Tribunal Act, 2004, which is an offspring of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended).
Section 28 of the Interpretation Act is applicable to this case and the Tribunal,
made up its Chairman and 1 (one) member, was properly constituted in law to
exercise its jurisdiction vested by both the Constitution of the Federal Republic of
Nigeria, 1999 (as amended) and the Code of Conduct Bureau and Tribunal Act,
2004.
I resolve Issue No. 1 against the appellant.
ISSUE 2
The appellant's argument on this issue is that the Tribunal Is not a court of criminal jurisdiction empowered to issue a bench Warrant against him. The reason for the argument that the Tribunal is not a court of criminal jurisdiction is that the punishment which it can impose is restricted to breaches of paragraph 14 of the Code of Conduct for Public Officers. Learned counsel, contended that this is why paragraph 18(b) of the Fifth Schedule to the Constitution "opens the way for prosecution in the regular courts where the breach alleged is also a crime". On this point,
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learned senior counsel for the appellant submitted further, inter alia, that:
"In such a situation a finding of guilty of the breach of a code of conduct which also discloses a crime in the statute books is automatically taken out of the jurisdiction of the CCT and the affected person may be prosecuted in the regular criminal courts. The CCT is a disciplinary body for public officers who fall below the acceptable level of probity, ethics and accountability. It is like the Legal Practitioners Disciplinary Committee that is set up by law to try and punish erring legal practitioners for breaches of the Rules of Professional Ethics for Legal Practitioners or like the Medical and Dental Practitioners Disciplinary Committee. These bodies proceed against their professionals by way of ‘charges’ or ‘complaints; They make far reaching findings and strike off in appropriate cases the names of erring^ professionals from their respective Rolls. However; these powers and the fact that their decisions go on appeal to superior appellate courts does not vest them with criminal jurisdiction."
In his response, the learned senior counsel for the respondent argued that the powers of the Tribunal under paragraph 18(1) of the Fifth Schedule to the Constitution to make a finding of guilt and impose punishment "are exercise of criminal jurisdiction." Relying on the case of A.G. Federation v. Abubakar (2007) 8 NWLR (Pt. 1035) 117, the learned senior counsel gave the features of a criminal trial. Relying further on the case of A.G. Federation v. Abubakar (supra), learned senior counsel contended that the Code of Conduct Tribunal has criminal jurisdiction.
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I wish to state immediately that I agree with the arguments of the learned
senior counsel for the respondent that the Code of Conduct Tribunal has criminal
jurisdiction, albeit limited criminal jurisdiction.
However, before I proceed further, the question has been asked by the parties and it is whether or not the Code of Conduct Tribunal isa court having criminal jurisdiction. I have already answered part of this question by saying, that the Tribunal has limited criminal jurisdiction. I will discuss this aspect of the question more elaborately tater in this judgment. The immediate question is whether the Tribunal is a court.
As shall be demonstrated anon the difference, if any, between a "court" and a
"tribunal" is so narrow that one can safely say that the difference between the
two words is a matter of mere nomenclature and or semantics. This is so
because in ordinary English Language, there is no significant difference between
a "court" and a "tribunal".
The elementary meaning given to the word "court" by the authors of Oxford
Advanced Learner's Dictionary (International ‐ Student‐s‐Edition) 7th Edition,
page 337 is as follows:
"1....the place where legal trials take place and where crimes, etc.are
judged…
2....the people in a court, especially those who make the
decisions, such as the judge and JURY………………................."
The same Oxford Advanced Learner's Dictionary, page 579, has given the
meaning of "tribunal" as follows:
"...a type of court with the authority to deal with a particular
problem or disagreement."
In its more advanced English meaning, "court" means: ‐ ‘‘
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"1. ...an official body that has authority to try criminals, resolve
disputes, or make other legal decisions.
2. ...the constituted authority presiding over a court of law.
3. ...a plate where a court of law is held…………."
On the other hand, "tribunal" means:‐
"1....a court of justice.
2....a body that is appointed to make a judgment or inquiry.....
3....a court convened to judge or investigate a particular
matter…….."
See Encarta World English Dictionary, pages 434 and 1991 respectively.
In its legal meaning, "court" is:
"1. A governmental body consisting of one or more judges who sit to
adjudicate disputes and administer justice……………………
2. The judge or judges who sit on such a governmental
body
5. The building where the judge or judges convene to adjudicate
disputes and administer justice…………………………
"Tribunal" means:
"1. A court or other adjudicatory body."
See Black's Law Dictionary, (Deluxe Ninth Edition) pages 405 and 1646,
respectively.
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In defining the word "tribunal" the learned authors of Bouvier Law Dictionary,
Compact Edition, page 1125 also explained the narrow difference between
"court" and "tribunal" when they stated thus:
"Tribunal: A court, or anyone who sits in judgment of others. A
tribunal is a seat of judgment, and in its use, it refers to the judge
or judges who hear a cause and adjudicate it In contemporary
usage, a tribunal is the institution of a court, including both the
person of the judge or judges and the other officials and
procedures by which the adjudication is prepared and performed.
There is no inherent difference in a court called a tribunal and one
called a court, although there is a tendency for military courts and
other courts established by executive fiat or international decree
to be called tribunals”
(Underlining mine for emphasis)
As can be seen from the definition and explanation reproduced above,
there is no inherent difference between a "court" and a "tribunal". The only
difference, as in this case, is that tribunals in most cases are courts with
jurisdiction to investigate particular matters and adjudicate special cases or
disputes. All that I am saying is that the Code of Conduct Tribunal, although not
presided over by judges, is a special court established to adjudicate cases or
disputes relating to breaches by public officers of the Code of Conduct for Public
Officers contained in the Fifth Schedule to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).
The question of whether the Tribunal is a court or not was pronounced upon by
this court in Attorney‐General of the Federation & 2 Ors. v. Alhaji Atiku
Abubakar (2007) 8 NWLR (Pt. 1035) 117 at 150, per Aboki, JCA; where my
learned brother stated that:
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"...the Code of Conduct Tribunal is a court. It is a court vested
with specific duties by the Constitution."
The Code of Conduct Tribunal is established pursuant to paragraph 15(1) of Fifth
Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) and also section 20(1) of the Code of Conduct Bureau and Tribunal
Act, 2004. Under section 23 of the said Act, the Tribunal has powers to impose
appropriate punishments where it "finds a public officer guilty of contravening
any of the provisions of this Act". The provisions of the said Act have specific
rules guiding the conduct of public officers in matters such as conflict of interest
with duty, prohibition of foreign accounts, gifts and benefits in kind, bribery,
abuse of powers, membership of societies, declaration of assets, amongst
others. The Rules of Procedure of the Tribunal are contained in the Third
Schedule to the Code of Conduct Bureau and Tribunal Act, 2004. In the said
Rules, words and phrases such as "trial of offences"; "order an on accused to
appear"; "commencement of trial"; "plea of not guilty or no plea";
"presentation of case for prosecution"; "application of Criminal Procedure Act or
Code"; and others have been conspicuously used. In fact paragraph 17 of the Third Schedule to the Code of Conduct Bureau and Tribunal Act provides that:
"Where these Rules contain no provision in respect of any matter relating to or connected with the trial of offences under this Act, the provisions of the Criminal Procedure Act or depending on the venue, the Criminal Procedure Code shall, with such modifications as the circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally,"
When the provisions of the Code of Conduct Bureau and Tribunal Act, 2004 are read together with the Rules contained in the Third Schedule thereto, it is very clear that the words, phrases and terminologies used
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by the legislature are words, phrases and terminologies used for and in criminal proceedings or trials. This is merely to re-echo what this court had decided over 8 (eight) years ago. For the avoidance of any doubt, see the case of Attorney General of the Federation & 2 Ors. v. Alhaji Atiku Abubakar
(2007) 8 NWLR (Pt. 1035) 117 at 150, per Aboki, JCA; where this court stated
that:
"In the administration of justice the features which distinguish a
criminal trial proceeding from a civil trial are arrest, arraignment,
the charge, plea, conviction, sentence, and prerogative of mercy.
In the instant case, an examination of the powers of the Code of
Conduct Tribunal and its trial procedure rules shows the trappings
of a criminal trial."
As can be seen from the decision of this court in Abubakar's case, the
Tribunal is a court with specific criminal jurisdiction. In a sense, because of the
provisions of paragraph 18(3) of the Fifth Schedule to the Constitution of the
Federal Republic of Nigeria, 1999 (as amended), the criminal jurisdiction of the
Tribunal is limited. However, in its limited criminal jurisdiction, the Tribunal
has the inherent powers of a court of criminal jurisdiction, including the power
to compel the attendance by a defendant through the instrumentality of a
bench warrant, as in Form 3 in the Third Schedule to the Code of Conduct Bureau
and Tribunal Act, 2004. See also paragraph 2 of the Third Schedule to the Act.
Without belabouring the matter, I hereby resolve this issue in favour of the respondent against the appellant.
ISSUE 5
The appellant has contended that the Tribunal erred in law "when in the face of a valid and subsisting order of the Federal High Court asking it to show cause why its proceedings ought not to be stayed, it proceeded with
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the business of the day in defiance of the said order". The appellant argued that "the Tribunal is not a court of coordinate jurisdiction with the Federal High Court" as it is not recognised by the provisions of section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). On his argument that the Tribunal is not a superior court of coordinate jurisdiction with the Federal High Court, the appellant relied on the case of National Union of Electricity Employees & Anor. v. Bureau for
Public Enterprises (2010) 7 NWLR (Pt 1194) 536. It was strongly submitted that the refusal by the Tribunal to honour or obey the order of the Federal High Court - a superior court of record was wrong because "where order has been made by a superior court directed at an inferior court that is likely to affect the direction of the proceedings in the lower court, the lower court is stripped of the jurisdiction to take any further steps in the matter." In support of this submission, reference was made to the case of Achebe v. Mbanejo (2007) 10 NWLR (Pt. 1043) 490 at 499 ‐ 500.
The respondent disagreed with the submissions of the appellant on this issue. The respondent referred to section 306 of the Administration of Criminal Justice Act, 2015 and argued that the Tribunal was right in refusing to stay its proceedings.
The learned senior counsel for the respondent contended that the cases relied on by the appellant were not applicable to this case.
I will be brief on this issue. The order of the Federal High Court, Abuja to which this issue relates spans pages 946 to 949 of the record of appeal (Vol. 2). It is clear from the said order that the appellant, by a motion ex parte sought sundry declarations and the two following interim injunctions against (1) the respondent; (2) the Chairman of the Code of Conduct Bureau; (3) the Chairman of the Tribunal and (4) Barr. M. S. Hassan:-
"1. An Order of Interim Injunction restraining the 1st to 4th respondents, their officers, servants, agents and or
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privies from taking any further step culminating in arraignment and or proffering a charge against the appellant, pending the hearing and the determination of the substantive suit.
2. ……………………………………………………………………………..
3. ………………………………………………………………………………
4. ……………………………………………………………………………...
5. An Interim Injunction of this honourable court directing the parties to this suit to maintain status quo ante without any further overreaching actions on each other, and to return to their former positions prior to this suit pending the determination of the motion on notice and substantive originating summons, filed before this honourable court."
After hearing the learned counsel for the appellant on the said ex parte application, the Federal High Court, on 17/09/2015 made the following order, among 4 (four) other orders:-
"An Order is hereby made directing the respondents to appear before this court on Monday, the 21st of September, 2015 and show cause why the interim orders of injunction being sought by the plaintiff/applicant should not be made by the court."
In its ruling on this issue, the Tribunal gave reasons for not acceding "to the request to halt proceedings" because of "an existing order barring the sitting of the Tribunal". See pages 956 to 957 of the record of appeal. It is apparent on the face of the record of appeal that the Tribunal was misled into believing or thinking that the Federal High Court made an order
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"barring" it from sitting. There was no such order. The order of the Federal High Court, reproduced above, merely directed the named respondents "to appear before this court... and show cause why the interim orders of injunction being sought by the plaintiff/applicant should not be made..." The respondents to the appellant's ex parte application could "appear" before the Federal High Court either by themselves or by their legal practitioners to react to the appellant's motion on notice for interim injunction. The order of the Federal High Court did not ask the Tribunal to stay proceedings or further proceedings in the case, the subject matter of this appeal.
Since there was no order by the Federal High Court directing the Tribunal to stay its proceedings, the arguments 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. The law is settled that a court will not engage its precious time in
adjudicating academic or hypothetical questions merely because learned
counsel for the parties have canvassed or raised them in their addresses or
arguments. See Amalgamated Trustees Limited v. Associated Discount House
Limited (2007) 15 NWLR (Pt. 1056) 111 at 149, per Tabai, JSC and Shettima v. Goni
(2011) 18 NWLR (Pt. 1279)413.
Without more, I also resolve this issue against the appellant and in favour of the respondent.
ISSUE 3
The learned senior counsel for the appellant submitted that the charge preferred against the appellant by Mr. M. S. Hassan in the Tribunal, without any authorisation of the Attorney-General of the Federation was not initiated in accordance with the provisions of section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 and paragraph 18 of the Third Schedule to the said Act. It was contended that the provisions of
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section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 are specific and cannot be overridden by the provisions of section 4 of the Law Officers Act, 2004. In support of the last leg of their submissions, learned senior counsel referred to the maxim "generalia special/bus non derogant" and the case of Matari v. Dangaladima (1993) 3 NWLR(Pt.281)266.
The learned senior counsel for the respondent, however, expressed different views on this issue. Learned counsel argued that "section 24(2) of the Code of Conduct Tribunal Act must bow to the provisions of sections 174 and 211 of the Constitution." The learned senior counsel referred to the cases of Comptroller of Prisons v. Adekanye (2002) 15 NWLR
(Pt. 790) 318 at 329; FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361 at 406 and FRN
v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 at 418 ‐ 419 and argued that:
"...it is not only the Attorney General in office that could initiate criminal prosecution in court but that other persons such as law officers in the Ministry of Justice, lawyers in the employment of prosecuting agencies, policemen in the service of Nigerian Police Force, can as well initiate criminal proceedings in any Court or Tribunal in Nigeria except the Court-Martial."
The learned senior counsel for the appellant referred to the case of A.‐G.; Federation v. ANPP (2003) 18 NWLR (Pt 851) 182 and stated that there is: a distinction between the Attorney General and the person occupying the office. Learned senior counsel argued that "M. S. Hassan can competently claim and sign a charge as an officer in the office of the Attorney General of the Federation" and that the charge in this case was signed by the said Hassan pursuant to the provisions of section 174(1) & (2) of the 1999 Constitution.
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In the alternative, the learned senior counsel relied on sections 2 and 4 of the Law Officers Act, 2004 and contended that "there is no doubt that the Solicitor General of the Federation who is empowered to exercise the powers conferred on the Attorney General of the Federation in the absence of a sitting Attorney General of the Federation duly authorised M. S. Hassan to initiate the charge." In support of this assertion, learned senior counsel referred the court to page 953 of Vol. 2 of the record of appeal.
In its ruling, the Tribunal applied the provisions of sections 2 and 4 of the Law Officers Act, Cap. L8, Laws of the Federation of Nigeria, 2004 and section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 and stated further that:
"In the absence of Attorney General, the Solicitor-General or any other officer in the Chambers [of the Attorney General can exercise such powers or duties of the Attorney-General to institution of criminal proceedings."
Section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 provides that:
"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 other officers in the Federal Ministry of Justice as the Attorney-General of the Federation may authorize so to do."
The relevant question here is whether the prosecution in dispute was initiated by the Attorney-General of the Federation or by "such other
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officers in the Ministry of Justice" as authorized by the Attorney-General of the Federation.
The office of the Attorney‐General of the Federation is a constitutional or
statutory office created by section 150 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended). Unless this office is abolished
through the instrumentality of amendment of the relevant provisions of the
Constitution, the office, like a continuum, remains in existence as an artificial
juristic person. Although the office of the Attorney‐General of the Federation
does not die, and indeed has not died, the duties and functions of the Attorney‐
General of the Federation must be carried out or performed by a biological
person or natural person, as only a human being can legally and logically occupy
the said exalted office. That the office of the Attorney‐General does not die,
unless abrogated by a constitutional amendment, see Attorney‐General of the Federation v. All Nigeria Peoples Party & 2 Ors. (2003)18 NWLR (Pt. 851)182 at
209, per Tobi, JSC.
In this case, both parties agree that at the time the respondent initiated the proceedings in the Tribunal, there was no person occupying the office of the Attorney-General of the Federation. The learned senior counsel for the respondent called to the respondent's aid the provisions of sections 2 and 4 of the Law Officers, Act, 2004, and contended that M.S. Hassan, Esq., was duly authorized to initiate the charge. Learned senior counsel to the respondent referred to page 953 of Volume 2 of the record of appeal, where Mr. M.S. Hassan was quoted by the Tribunal as having said as follows:
"In the absence of the Attorney General of the Federation, the Solicitor General can perform such powers as the Attorney General. The Solicitor General is in office and I am authorized to file this action."
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I agree that in the absence of the Attorney‐General' of the Federation, the
Solicitor‐General of the Federation may perform his "duties and shall have the
same powers as are imposed by the law on the Attorney General of the
Federation". See section 4 of the Law officers' Act, 2004.
The information by Mr. Hassan to the Tribunal, quoted above, prima facie,
showed that he was authorized to institute the action by the learned Solicitor‐
General of the Federation; having regard to the time‐honoured tradition of our
honourable profession, that a learned counsel speaking from the Bar, as a
minister in the hallowed temple of justice, would say only the truth and nothing
but the truth. There was no basis for the Tribunal to disbelieve or ignore such
information‐from a gentleman of the noblest profession in the world. That
attorneys‐at‐law are the court's ministers, see Mayor of Norwich v. Barry (1766)
4 Burr. (Part IV) 2115, where Yates, J. stated as follows:
"The Court must have ministers: the attorneys are its ministers"
In any case, even nature does not condone vacuum. Therefore, commonsense
dictates that the prosecution of an accused defendant should not be postponed
or truncated merely because there isno sitting Attorney‐General. This perhaps
informed the legislature to provide unequivocally in section 174 (1)(a) and (2) of
the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that:
"174 (1) the Attorney‐General of the Federation shall have power‐
(a) To institute and undertake criminal proceedings against any
person before any court in Nigeria, other than a court‐martial, in
respect of any offence created by or under any act of the National
Assembly;
(b) …………………………………………………………………………………………….
(c) ………………………………………………………………………………………………
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(2) The powers conferred upon the Attorney‐General of the
Federation under subsection (1).of this section may be
exercised by him in person or through officers of his
department"
The words in the above constitutional provisions are clear, plain and
unambiguous and should be given their ordinary grammatical meaning. See Chief Gani Fawehinmi v. Inspector‐General of Police & 2 Ors (2002) 7 NWLR
(Pt.767) 606 at 680, per Uwaifo, JSC, where the Supreme Court held:
"The whole essence is to approach the interpretation of the Constitution in order to uphold it to meet the purpose of the framers and the aspirations held out by it for the larger society, primarily by looking at the words used until there is the need to take other factors into consideration. When the term are plain and involve no ambiguity they must be given their meaning upon the ordinary and surrounding circumstances."
Occasions may arise, such as the present circumstances, where constitutional provisions may require broad and liberal interpretation. See Director of State Security Service & Anor. v. Olisa Agbakoba (1999) 3 NWLR
(Pt 595) 425 and Chief Gani Fawehinmi v Inspector‐General f Police (supra).
The provisions of section 174 subsections 1(a) and (2) of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended) are broad enough to justify Mr.
M. S .Hassan, a deputy director in the office of the Attorney‐General of the
Federation to institute the proceedings against the appellant in the Tribunal.
The learned senior counsel for the appellant submitted strongly that the provisions of section 174 of the Constitution would not apply to save the
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present situation because there is no sitting Attorney - General "through ;whom the powers specified therein could be delegated to officers in the Federal Ministry of Justice". In support of this submission, the learned senior counsel referred to and relied on section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 which according to them, "specifically requires the Attorney-General of the Federation, to either sign the charge or be available to give consent to the law officer that will sign the charge even if the law officer is the Solicitor -General of the Federation himself. I do not agree with the contention of the learned senior counsel for the appellant that consent to sign or institute prosecution must be
physically delegated to the Solicitor‐General of the Federation or any other law
officer of the Federation. This is so because section 24(2) of the Code of Conduct
Bureau and Tribunal Act cannot be read in isolation of the clear provisions of
section 4 of the Law Officers Act. The right to perform the duties and exercise
the powers of the Attorney‐General of the Federation by the Solicitor‐General, in
the absence of the former, has statutory backing and to require physical consent
is a requirement that is merely a surplussage.
The Solicitor‐General of the Federation, while performing the duties and
exercising the powers of the Attorney‐General of the Federation, in the absence
of the latter, can also do so through any law officer in the Federal Ministry of
Justice. The law is that there is a presumption that "any officer in any
department of the Attorney‐General's office is empowered to initiate criminal
proceeding unless it is proved otherwise". See Federal Republic of Nigeria v. Senator Olawole Julius Adewunmi (2007)10 NWLR (Pt 1042) 399 at 418, per Kalgo, JSC.
The presumption to initiate the prosecution in the Tribunal in favour of Mr. M.S. Hassan has not been rebutted by the appellant in this case.
Without more, issue number 3 is hereby resolved in favour of the respondent.
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Having resolved all the issues in this appeal against the appellant, this appeal is hereby dismissed. The decision of the Tribunal is hereby affirmed.
MOHAMMED MUSTAPHA. JCA.
I had the privilege of reading before now in draft form the lead judgment just delivered by my learned brother Moore Adumein, JCA.
I agree with the reasoning and conclusions arrived at. My learned brother considered very carefully all the issues canvassed in this appeal, for that reason, I agree also that the appeal be dismissed for lack of merit.
JOSEPH E. EKANEM, JCA
I had the opportunity of reading in its draft form the judgment of my learned brother, Moore A. A. Adumein, JCA.
I shall take issue two of the appellant first, viz;
Whether the Code of Conduct Tribunal is a court of 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.
It was submitted by the appellant that the Code of Conduct Tribunal is not a court of criminal jurisdiction and therefore cannot proceed to issue summons, warrant of arrest and other penal processes. The respondent on the other hand relied on the case of Attorney‐General of the Federation v. Abubakar (2007) 8 NWLR (1035) 117 to argue to the contrary.
This court in the case of Attorney‐General of the Federation v. Abubakar supra, P. 150 held (per Aboki, JCA) that,
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"...the code of conduct tribunal is a court".
However, speaking for myself, it is my view that the Code of Conduct Tribunal (CCT) is not a court strictly so speaking and so it cannot be described as a "Court of criminal jurisdiction". The CCT is provided for in paragraph 15 (1) of the 5th schedule to the Constitution. Section 20 (1) of the Code of Conduct Bureau and Tribunal Act (CCBTA) establishes the CCT. Both provisions envisage it is a tribunal. It is in my view not a superior court of record as envisaged in Section 6(3) and (5) (a) - (i) of the Constitution of Nigeria 1999 (as amended). It is not included in sub-section 5 (a) - (i) as one of the superior courts of record in Nigeria. See National Union of Electricity Employees v. Bureau for Public Enterprises (2010) 7
NWLR (1194) 536.
It is also not established by the National Assembly" as a court pursuant to sub-section (4) (a) of section 6 of the Constitution. Rather it is established as a tribunal pursuant to paragraph 15 (1) of the 5th Schedule to the Constitution. There is no doubt that the CCT has power pursuant to paragraph 18(1] of the 5th schedule to the Constitution to inter alia;
Impose punishment specified on a public officer who is guilty of contravention of any provision of the code of conduct contained in the Constitution. See also section 23 of the CCBTA.
The CCT also has powers to ensure the appearance of an accused, compel the appearance of witness, take plea, proceed to trial etc. However, the CCT is a constitutional or judicial tribunal with a limited jurisdiction to try public officers for breaches of the code of conduct for public officers.
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In the case of Adeyemi v. Attorney‐General of Oyo State (1984) NSCC 397, the Supreme Court considered whether or not the Boundaries Commission and Appeal Tribunal were courts of law. It held (per Bello, JSC, (as he then was) Obaseki, JSC, Nnamani, JSC and Uwais, JSC (as he then was) that the Boundaries Commission and the Appeal Tribunal were not courts of law even though they had the trappings of a court of law. At page 416, Bello JSC, as he then was, gave one of the distinguishing factors between a judicial tribunal and a court as follows;
"While suitors... have the right to invoke its (court's) jurisdiction, they have no such right in respect of the Boundary Commission whose jurisdiction can only be invoked by the Governor-in-Council.” Note: Word in brackets is mine for clarity.
Applying the above to the instant case, it is clear from Section 24(2) of the CCBTA that the jurisdiction of the CCT can only be ignited by the Attorney-General of the Federation or such officers in the Federal Ministry of Justice as may be authorised to do so by him. Members of the public cannot invoke its jurisdiction.
In spite of the above, it is my view that the CCT has powers to compel the
appearance of an accused by issuance of a bench warrant. Paragraph 15 (4) of
the 5th schedule to the Constitution of Nigeria provides that,
"The National Assembly may by law confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effectively to discharge the functions conferred on it in this schedule".
Section-24-(l) of the CGBTA provides that,
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"The rules of procedure to be adopted in any prosecution for the offences under this Act before the Tribunal, and the forms to be used in such prosecution shall be as set out in the Third Schedule to this Act".
Rule 2 of the Third Schedule to the Act-Code of Conduct Tribunal Rules of Procedure-provides;
"Where after the perusal of the application and the summary of evidence, affidavit or any further evidence in such form as the Tribunal may consider necessary, the Tribunal is satisfied that any person appears to have committed an offence provided under this Act, it shall cause that person to be brought before the Tribunal on such date and at such time as it may direct".
It should be said in passing that the legislature is empowered to enact this provision by the specific power given it by par. 15 (4) of the 5th schedule to the Constitution. See Doherty v. Balewa (1961) All NLR 630, 639 and 640.
Thus the Tribunal is empowered to "Cause" the bringing of an accused person
before it in the circumstance set out above. By section 10 of the Interpretation
Act, the incidental power to issue a bench warrant to "cause" the bringing of
such a person lies in the Tribunal. It is no wonder then that Form 3 in the Rules is
the form of the warrant for apprehension of accused.
I am fortified in my reasoning above by Rule 17 of the Rules which provides that;
"Where these Rules contain no provision in respect of any matter relating or connected with the trial of offences
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under this Act, the provisions of the Criminal Procedure Act or depending on the venue, the Criminal Procedure Code shall, with such modifications as the circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally”
This provision (the nature of which has been approved in DOHERTY v. BALEWA
supra. 641‐642) effectively empowers the CCT to invoke Sections 113 and 114 of
the Administration of Criminal Justice Act 2015 as well as the relevant provisions
of the Criminal Procedure Code to issue Bench warrant against an accused
person in appropriate circumstances.
It is therefore my view that the CCT is empowered to issue Bench Warrant under
appropriate circumstances.
As regards issue three which is whether having regard to the clear wording of Section 24 (2) of the CCBTA Cap C 15 2004 whether the 13 count charge preferred against the appellant by someone other than the Attorney-General of the Federation is competent, by a letter addressed to the Chairman of the Code of Conduct Tribunal (CCT) Abuja dated 11/9/2015, M. S. Hassan Deputy Director, office of the Honourable Attorney - General of the Federation, applied for the commencement of trial for certain offences against the appellant before the CCT. The opening paragraph of the application is instructive. I therefore set it out hereunder:
"1. Pursuant to Section 24 of the Code of Conduct Bureau and Tribunal Act, I hereby apply for the commencement of the trial for the offences of..."
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Sincetheapplication to kick-start proceedings against the appellant was made pursuant to Section 24 of the Code of Conduct Bureau and Tribunal Act, I shall set out here under the provision of Section 24 (2) which is relevant to the application:
"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 or such officers in the Federal Ministry of Justice as the Attorney - General of the Federation may authorise so to do”
It is clear from the above that for proceedings to be instituted pursuant to Section 24 (2) of the Act it must be 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 may authorise.
The office of the Attorney ‐ General is recognised and provided for in the
Constitution of Nigeria. See Section 150 (1) of the Constitution of Nigeria, 1999
(as amended). It is a corporation sole with a separate and distinct personality
from the natural person who for the time being holds the office. Thus the mere
fact that there is no natural person occupying the office does not mean that the
office is dead. See Attorney ‐ General of the Federation v. All Nigeria People's Party (2003) 18 NWLR (851) 182 also reported in (2004) 114 LRCN 2671, 2687.
To eliminate any disability that may arise from the absence of a natural person
occupying the office of the Attorney ‐ General, Section 4 of the Law Officers Act
Cap. L8, Laws of the Federation of Nigeria 2004 provides as follows:
"The Solicitor ‐ General of the Federation in the absence of the
Attorney ‐ General of the Federation may perform any of the
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duties and shall have the same powers as are imposed by law
on the Attorney ‐ General of the Federation".
It follows from the above that in the context of Section 24 (2) of the Code of
Conduct Bureau and Tribunal Act, the Solicitor ‐ General of the Federation can
rightly institute proceedings in the Code of Conduct Tribunal in the name of the
Federal Republic of Nigeria in the absence of the Attorney‐General. He may
alternatively authorise an officer in the Federal Ministry of Justice to institute
such proceedings.
In this instance, M. S. Hassan is a Deputy Director in the office of the Attorney - General of the Federation and so he eminently qualifies as an officer in the Federal Ministry of Justice. There is however no document to show that he was authorised to institute the proceedings the subject of this appeal. At page 953 Vol. 11 of the record-of appeal, M. S. Hassan, Esq. for the respondent stated in the Tribunal;
"In the absence of the Attorney - General of the Federation, the Solicitor - General can perform such powers as the Attorney - General. The Solicitor - General is in office and 1 am authorised to file this action”
Apart from the fart the authority, his statement that "I. am authorised to file this action does not go further to say that he was authorised by the Solicitor - General. It carefully stops short of stating who authorised him.
In the English case of Price v. Humphries (1958) 2 Q.B353, 358, the provision of Section 53 (1) of the National Insurance Act 1946 came under scrutiny. It provides that "proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an inspector
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or other officer authorised in that behalf by special or general directions of the Minister'7. An objection was raised, though belatedly, by the defence that the prosecution failed to prove that the proceedings were instituted with or by the consent of the Minister (of Pensions) or by an inspector or other officer authorised. Although the court on appeal rejected the objection for being belated having been raised after the close of the prosecution's case, Devlin, J, stated as follows;
"If the defence wants to challenge that and take objection, they should take the objection before prosecution case is closed, and having taken their objection the burden will pass to the prosecution to produce the evidence they have which shows that the proceedings were duly authorised"
I agree with the above dictum and it applies to this case.
Senior Counsel for the respondent did submit that M.S. Hassan signed the charge by the provision of Section 174 (1) and (2) of the Constitution of Nigeria 1999 as an officer in the office of the Attorney-General of the Federation. However, a look at the charge shows that M. S. Hassan instituted the proceedings pursuant to Section 24 of the CCBTA. Besides the power of the Attorney - General in the Constitution is to institute criminal proceedings in “any court of law in Nigeria" but we are dealing with a tribunal which strictly speaking is not a court of law. The power to institute proceedings by the Attorney - General in the CCT is derived from Section 24 (2) of CCBTA which was breached in this instance.
It is therefore my view that the charge before the CCT is incompetent. I resolve issue 3 in appellant's favour.
It is for the above reason that I hold that the appeal has merit. I allow it and set aside the charge before the CCT, and discharge the appellant.
APPEAL ALLOWED
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