➥ CASE SUMMARY OF:
Dr. Olubukola Abubakar Saraki V. Federal Republic of Nigeria (SC.852/2015, 5 Feb 2016)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Code of conduct tribunal;
Institution of criminal action in the absence of attorney general.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Court of Appeal, Holden at Abuja in appeal No. CA/A/551/2015 delivered on the 30th day of October, 2015 in which the could dismissed the appeal of appellant against the ruling of the Code of Conduct Tribunal in charge No CCT/ABJ/01/2015 delivered on the 18th day of September, 2015 in which the tribunal held that the criminal charge preferred against appellant was competent despite the absence of a sitting Attorney-General of the Federation and issued a bench warrant against appellant for his failure to appear before the tribunal and answer/plead to the charges preferred against him.
Appellant was a two-term Governor of Kwara State, between May, 2003 and May, 2011. While in the said office appellant filed, as required by law, four asset declaration forms and submitted same to the Code of Conduct Bureau. These forms were duly investigated by the Bureau and other relevant agencies of government as a result of which it was allegedly found that appellant allegedly corruptly acquired many properties while in office as Governor of Kwara State but failed to declare some of them in the said forms earlier filled and submitted to the relevant authorities. It was also allegedly discovered that appellant made an anticipatory declaration of assets upon his assumption of office as Governor of Kwara State which he acquired later. It was also alleged that appellant sent money abroad for the purchase of properties in London and that he maintained an account outside Nigeria while serving as the said Kwara State Governor. It was the discovery of these alleged violations of the Code of Conduct for Public Officers that the Code of Conduct Bureau initiated a criminal proceeding against appellant before the Code of Conduct Tribunal, Hold at Abuja.
➥ ISSUE(S)
I. Whether the majority decision of the Court of Appeal, Abuja Division was right in the interpretation of the Constitution when it held that the Code of Conduct Tribunal was properly constituted in law when it sat on 18/09/2015 with just the Chairman and one (1) other member in contravention of the provisions of paragraph 15(1) of the 5th schedule of the 1999 constitution as to exercise the powers and jurisdiction vested by the 1999 Constitution and if the answer is in the negative, whether the charge and the entire proceedings inclusive of the Ruling in issue is not null and avoid and of no consequence?
II. Whether the majority decision was right when it held that the Code of Conduct Tribunal is a Court of Limited Criminal jurisdiction competent and empowered to issue a Bench Warrant against the appellant in the event of his absence from the proceedings of the Tribunal?
III. that having regard to the clear wording of section 24(2) of the Code of Conduct Bureau and Tribunal Act the 13 count charge preferred against appellant by someone other than the Attorney-General of the Federation is incompetent and liable to be set aside?
IV. Whether the majority decision of the Court of Appeal was correct in law when it held that notwithstanding the lack of proper service an the Appellant of the Criminal Summons to appear before the Code of Conduct Tribunal on the 18th of September 2015 such a vice was a mere irregularity cured by the appearance of the appellant at the proceedings regardless of the existence of Appellant’s conditional appearance on protest?
V. Whether the majority decision of the court below was right when it justified the refusal of the Code of Conduct Tribunal to obey the Federal High Court to appear before it and show cause why it should not order a stay of further proceedings on the ground that the order in issue was not one specifically asking the lower Tribunal to stay its proceedings?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE CHAIRMAN AND ONE MEMBER SITTING IS VALID
‘It is important to note that a resort to the provisions of the Interpretation Act is not for the purpose of filling in a lacuna but of interpretation of the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, (supra) and section 201(1) and (2) of Cap. C15 of LFN 2004 which established the Code of Conduct Tribunal as consisting of the Chairman and two other members. In other words, what do these provisions mean for the purpose of the tribunal exercising its jurisdiction? The answer is as provided by section 28 of the interpretation Act thus, inter alia: “Notwithstanding anything contained in any Act at any other enactment, the quorum of any tribunal, commission of inquiry (including any appeal tribunal established for the purpose of hearing any appeal arising therefrom) shall not be less than two (including the Chairman)…” From the above provision, it is clear that any sitting of the Code of Conduct Tribunal presided by the Chairman and one member, as was the case herein, is valid.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE TRIBUNAL HAS A QUASI CRIMINAL JURISDICTION
‘The Lower Court in considering the issue had come to the conclusion the Code of Conduct Tribunal is a tribunal with limited criminal jurisdiction. However, looking closely at the provisions of the 5th schedule to the 1999 Constitution, as amended and the Code of Conduct Bureau and Tribunal Act, earlier referred to in this judgment, it is safer to hold that the said tribunal has a quasi-criminal jurisdiction designed by the 1999 Constitution, as amended. It is a peculiar tribunal crafted by the Constitution. In the circumstance, I hold the strong view that as a tribunal with quasi-criminal jurisdiction with authority to be guided by the Criminal Procedure Act or Code in the conduct of its proceedings, it can legally issue bench warrant for the purpose of carrying out its quasi criminal jurisdiction. I should not be understood as saying that the Code of Conduct Tribunal is a court of superior record or jurisdiction with relevant inherent powers and sanctions but that as a quasi-criminal tribunal/court, it has the necessary powers to put into effect its mandate of ensuring accountability, probity, transparency etc of public officers in public office.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[AN OFFICER IN THE ATTORNEY-GENERAL’S OFFICE CAN INSTITUTE CRIMINAL PROCEEDING
‘In interpreting the provisions of section 174 of the 1999 Constitution, as amended or similar provision under the 1979 Constitution – section 160 thereof, this Court has held in a number of cases that the Attorney-Generals power of public prosecution is not exclusive as any other authority or person can institute and undertake criminal prosecution – see FRN v. Adewunmi supra, at 418-419 where this Court stated Inter alia thus: “These sections though very familiar in content do not require that the officer can only exercise the power to initiate criminal proceedings if the Attorney-General expressly donated his power to them. The provisions of this section presumed that any officer in any department of the Attorney-Generals office is empowered to initiate criminal proceeding unless it is proved otherwise” See also FRN v. Osahon (2006) 5 NWLR (Pt.973) 361. It is very clear that the power of initiating criminal proceedings by any officer of the department of the Attorney-General of the Federation is not dependent on the office of the said Attorney-General of the Federation having an incumbent.’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[‘The complete answer to the above issue as argued lies in the provision of section 136(a) of the Administration of Criminal Justice 2015 to the effect that trials may be held notwithstanding- (a) any irregularity, defect or error in the summons or warrant or in the issuing service or execution of the Summons or Warrant. By operation of section 4(2) (b) of the interpretation Act, references to the Criminal Procedure Act and/or Criminal Procedure Code in the Third (3rd) Schedule to the Code of Conduct and Bureau Tribunal Act particularly rule 17 thereof are understood or construed to mean references to section 136 of the said Administration of Criminal Justice Act, 2015. The said section 136(a) of the Act provides as follows:- ” Where a defendant is before a court, whether voluntarily or on summons or after being arrested with or without warrant, or while in custody for the same or any other offence, the trial may be held notwithstanding – (a) any irregularity, defect or error in the summons or warrant or in the issuing, service, or execution of the summons or warrant.”’]
.
.
↪️ ISSUE 5: IN RESPONDENT’S FAVOUR.
[THERE WAS NO ORDER OF THE FEDERAL HIGH COURT STAYING THE PROCEEDINGS OF THE CODE OF CONDUCT TRIBUNAL
‘I have carefully gone through the record particularly the order of the Federal High Court in suit No FHC/ABJ/CS/775/2015 issued on the 17th day of September, 2015 and reproduced at pages 946 – 949 of Vol. 2 of the record and the judgment of the Lower Court on the issue particularly at pages 1243 – 1244 of the record and I have no hesitation in agreeing with the decision of the Lower Court on the matter The Lower Court found/held as follows, inter alia:- ”It is apparent an the face of the record of appeal that the tribunal was misled into believing or thinking that the Federal High Court made an order “baring” it from sitting. There was no such order. The order of the Federal High Court reproduced above, merely directed the main respondents “to appear before this court… And show cause why the interim orders of injunction being sought by the plaintiff/appellant should not be made…The respondent to the Appellant ex-parte application could “appear” before the Federal High Court either by themselves or by their legal practitioners to react to the appellants motion on notice for interim injunction. The order of the Federal High Court did not ask the Tribunal to slay proceedings or further proceedings in the case, the subject natter of this appeal. Since there was no order by the Federal High Court directing the tribunal to stay proceedings, the argument of the contending parties on whether or not the tribunal is a superior court having coordinate jurisdiction with the Federal High Court are merely of academic relevance.” As stated earlier, the above decision cannot be faulted having regard to the facts of the case and arguments of Counsel on the issue concerned. The only positive order made by that court was for the respondents to Federal High Court and show cause why the interim orders of injunction being sought by the appellant should not be made. The respondents to the application in which the order was made could appear either personally or by legal practitioners. They were not ordered to appear in person. In any event the suit in which the order was made is not the matter giving rise to this appeal. I hold the view that if appellant felt aggrieved with the conduct of the respondents in respect of the order in issue, appropriate processes could be initiated in the suit in which the order was made to seek appropriate redress. In any event, there was no order of the Federal High Court staying the proceedings of the tribunal which was disobeyed by the tribunal. I hold the view that the instant issue is an attempt at intimidating the Code of Conduct Tribunal which is very unfortunate.’]
.
.
.
✓ DECISION:
‘In the circumstance I find this issue, like the others already considered, of no merit and accordingly resolved against appellant. Having resolved issues 1 – 5 supra against appellant, I see no need to consider issue 6 because such a consideration will serve no useful purpose. In fact issue 6 has already been resolved in substance against appellant during my consideration of issue 2 supra. In conclusion, I find no merit in the appeal which is accordingly dismissed. The judgment of the Lower Court delivered on the 30th day of October, 2015 dismissing the appeal of appellant against the ruling of Code of Conduct Tribunal of 18th September, 2015 is hereby affirmed. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ IN THE ABSENCE OF A SITTING ATTORNEY GENERAL, LAW OFFICERS IN THE OFFICE CAN PROFFER CRIMINAL CHARGE
Sub-Section (2) of Section 174 of the 1999 Constitution quoted above is quite clear and unambiguous. It has provided that even in the absence of a sitting Attorney-General of the Federation, Officers of his Department such as the Deputy Director from the Federal Ministry of Justice who signed and filed the 13 counts charge against the Appellant, can initiate the proceedings of prosecution before the Code of Conduct Tribunal against the Appellant, notwithstanding the specific provisions of Section 24(2) of the Code of Conduct Act, 2004, relied upon by the Appellant. This is because the Law is trite that the provisions of the Constitution override any other provisions in any Act of the National Assembly. See Federal Republic of Nigeria v. Adewunmi (2007) 10 NWLR (Pt.1042) 399 at 418-419. On the whole therefore, it would appear that the complaint of the Appellant in this issue against the majority decision of the Court below is rather misconceived resulting in this issue being resolved against the Appellant. — Mahmud Mohammed JSC.
⦿ THE OFFICE OF THE ATTORNEY GENERAL DOES NOT DIE
In agreeing with the above finding, the court below, remarked. Inter alia: The office at 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 continum, remains in existence as an artificial or 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 and 2 Ors (2003) 18 NWLR (Pt 851) 182 at 249. pet Tobi JSC … 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 provisions of Section 174(1)(a) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are bread enough to justify Mr. M. S. Hassan, a Deputy Director in the office at the Attorney-General of the Federation to institute the proceedings against the appellant in the Tribunal.”
⦿ SPEAKING FROM THE BAR
Mr. Hassan who appeared before the tribunal to prosecute the appellant to the tribunal in his words: “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 authorised to file this action.” This was an information coming from a learned counsel who was speaking from the Bar, and who, as a Minister in the temple of justice, would always be expected to say nothing but the truth. Was he disproved? There is no finding to that effect. Thus, the presumption of regularity must work in favour of the earned counsel. Mr. Hassan and there was no basis for the tribunal to disbelieve or ignore such information from a gentleman of the Bar. — Muhammad Tanko JSC.
⦿ QUORUM OF THE CODE OF CONDUCT TRIBUNAL
I am of the firm view that by virtue of the provision of Section 28 of the Interpretation Act as set out above, the chairman and one other member shall be sufficient to form a quorum of any tribunal including the Code of Conduct Tribunal. So in determining the issue of quorum of the Code of conduct Tribunal, resort can conveniently be made to the provisions of the Interpretation Act. See: A-G Federation v. A – G Anambra State (No 2) (2012) 6 NWLR (Pt.764) 542. Thus, the effect of the provisions of section 28 of the interpretation Act is that the sitting of a Tribunal shall be valid once the chairman of the Tribunal sits with one other member of the Tribunal in the case on hand the proceedings of the tribunal by the Chairman. Mr. Umar who sat with one other member. Mr. Atedze was validly conducted. Further, Section 28 of the interpretation Act is made in such encompassing nature that it is applicable “notwithstanding anything contained in an Act/Legislation. It implies among others “irrespective of any other provision” the section must be enforced. It also means that the provision of the section cannot be undermined by any other provision in any other Act or enactment. In NDIC v. Okem Ent. (2004) 10 NWLR (Pt.880) 107 at 182 this court, per Uwaifo, JSC (rtd) stated as follows: “When the term notwithstanding” is used in the section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself.” See further Olatumbosun v. NISER COUNCIL (1988) 3 NWLR (Pt. 80) 25: Ndaba (Nig.) Ltd v. UBN Plc (2009) 13 NWLR (Pt. 1158) 256 at 304.
➥ LEAD JUDGEMENT DELIVERED BY:
Walter Sanuel Nkanu Onnoghen, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
J.B. Daudu, SAN.
⦿ FOR THE RESPONDENT(S)
Rotimi Jacobs, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
