Dr. Olubukola Abubakar Saraki V. Federal Republic Of Nigeria

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Dr. Olubukola Abubakar Saraki V. Federal Republic Of Nigeria

Supreme Court – February, 2016
APPEAL NO.SC. 852/2015

Areas Of Law:
APPEAL, CONSTITUTIONAL LAW, COURT, CRIMINAL LAW AND PROCEDURE, INTERPRETATION OF STATUTE, JURISDICTION, PRACTICE AND PROCEDURE, TRIBUNAL, WORDS AND PHRASES

Summary Of Facts

The Appellant was a two-term Governor of Kwara State, between May, 2003 and May, 2011. Whilst in the said office, the 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 discovered that the Appellant 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 the Governor of Kwara State which he acquired later and that he sent money abroad for the purchase of properties in London and maintained an account outside Nigeria while serving as the 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, holden at Abuja. Upon been summoned by the Tribunal, the Appellant filed a motion challenging the competence of the Tribunal to determine such matter and also file a suit each at the Federal High Court Holden at Abuja and Lagos wherein he challenged the validity of the criminal proceedings against him at the Code of Conduct Tribunal. At the Tribunal, the Appellant argued that since the office of the Attorney-General of the Federation was vacant as at when the charge against him was filed, the said charge was hence incompetent and he refused to appear before the Tribunal. The Tribunal after overruling the objections of the Appellant issued a bench warrant against him to appear on the next adjourned date. The Appellant failed to appear before the Tribunal to take his plea, which prompted the Tribunal to renew the bench warrant and consequently adjourn the matter. The Appellant eventually appeared before the Court voluntarily and the charges were read to him wherein he pleaded not guilty which led to a revocation of the warrant of arrest/bench warrant issued against him. He thereafter, appealed to the Court of Appeal against the ruling of the tribunal, on grounds that the Code of Conduct Tribunal was not properly constituted, that the charge preferred against the Appellant is incompetent as there was no sitting Attorney-General of the Federation amongst others but the appeal was dismissed by the lower court, hence, a further appeal to the Supreme Court.

Held
Appeal Dismissed.

Issues For Determination

  • Whether the majority decision of the Court of Appeal, Abuja Division was right in the interpretation of the Constitution when it held that the Code of Conduct Tribunal was properly constituted in law when it sat on 18/09/2015 with just the Chairman and one (1) other member in contravention of the provisions of paragraph 15 (1) of the 5th schedule of the 1999 Constitution as to exercise the powers and jurisdiction vested by the 1999 Constitution and if the answer is in the negative, whether the charge and the entire proceedings inclusive of the Ruling in issue is not null and avoid and of no consequence? (ISSUE NO 1) (Grounds 1 and 2).
  • Whether the majority decision was right when it held that the Code of Conduct Tribunal is a Court of Limited Criminal jurisdiction competent and empowered to issue a Bench Warrant against the appellant in the event of his absence from the proceedings of the Tribunal? (ISSUE NO. 2) (Ground 3).
  • Having regard to the clear wording of section 24(2) of the Code of Conduct Bureau and Tribunal Act, Cap C15, 2004 whether the 13 count charge preferred against the Appellant by someone other than the Attorney-General of the Federation is competent? (ISSUE No. 3) (Ground
  • Whether the majority decision of the Court of Appeal was correct in law when it held that notwithstanding the lack of proper service on the Appellant of the Criminal Summons to appear before the Code of Conduct Tribunal on the 18th of September, 2015 such a vice was a mere irregularity cured by the appearance of the appellant at the proceedings regardless of the existence of Appellant’s conditional appearance on protest? (ISSUE No. 4) (Ground 5).
  • Whether the majority decision of the court below was right when it justified the refusal of the Code of Conduct Tribunal to obey the Federal High Court to appear before it and show cause why it should not order a stay of further proceedings on the ground that the order in issue was not one specifically asking the lower Tribunal to stay its proceedings? (ISSUE No. 5) (Ground 6)
  • Whether the majority decision of the Court of Appeal was correct when it held that the Code of Conduct Tribunal was a criminal court empowered to apply the Administration of Criminal Justice Act? (ISSUE No. 6) (Ground 7).”

Rationes
“QUORUM” – MEANING OF “QUORUM”
“Blacks Law Dictionary, 6th Ed. Page 1255 defines the word thus:
“A majority of the entire body, e.g a quorum of a State Supreme Court. The number of members who must be present in a deliberative body before business may be transacted In both houses of congress a quorum consists of a majority of those chosen and sworn Such a number of the members of a body as is competent to transact business in the absence of the other members.” PER W. S. ONNOGHEN, J.S.C.

SUPREME COURT – CONSTITUTION OF THE SUPREME COURT FOR THE PURPOSE OF EXERCISING JURISDICTION
“Section 230 of the 1999 Constitution, (as amended) established the Supreme Court of Nigeria and detailed its composition but section 234 of the said 1999 Constitution provides for the quorum or Constitution of the court for the purpose of exercising its jurisdiction, inter alia, thus:
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court…” See also section247(1) in relation to the Court of Appeal.” PER W. S. ONNOGHEN, J.S.C.

CODE OF CONDUCT TRIBUNAL – DETERMINATION OF THE QUORUM OF THE CODE OF CONDUCT TRIBUNAL
“To determine the quorum of the Code of Conduct Tribunal as established, one has to look at section 28 of the Interpretation Act which, by operation of section 318(4) of the 1999 Constitution as amended, “… shall apply for the purpose of interpreting the provisions of this Constitution.” PER W.S. ONNOGHEN, J.S.C.

COMPOSITION OF THE CODE OF CONDUCT TRIBUNAL – INTERPRETATION OF PARAGRAPH 15(1) OF THE 5TH SCHEDULE TO THE 1999 CONSTITUTION AND SECTION 20(1) AND (2) OF THE CODE OF CONDUCT BUREAU AND TRIBUNAL ACT ON THE COMPOSITION OF THE CODE OF CONDUCT TRIBUNAL
“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 for interpretation of the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution, (supra) and section 20(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 or any other enactment, the quorum of any tribunal, commission of inquiry (including any appeal tribunal established for the purpose of hearing any appeal arising therefrom) shall not be less than two (including the Chairman)…”
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.” PER W. S. ONNOGHEN, J.S.C.

QUORUM OF THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL – SECTION 285(4) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“In order to determine the quorum of the said National and State Houses of Assembly Election Tribunal, section 285(4) of the said 1999 Constitution as amended by the First Alteration provides that:
The quorum of an election tribunal established under this section shall be the Chairman and one other member.” PER W.S. ONNOGHEN, J.S.C.

PUNISHMENT – PURPORT OF PUNISHMENT
“In the case of United State vs Levet (1945) 328 U S 303 cited by learned Senior Counsel for appellant, it was held thus:
“Punishment presupposes an offence, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprive of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony or because he is no longer qualified the deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstance deprive of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony or because he is no longer qualified the deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.”
Clearly therefore, there are administrative and criminal sanctions.” PER W.S. ONNOGHEN, J.S.C.

PUNISHMENT – NATURE OF PUNISHMENT TO BE IMPOSED BY THE CODE OF CONDUCT TRIBUNAL
“It must be observed that the nature of the punishment to be imposed by the tribunal is not exhaustive at the moment because paragraph 8(1) of the 5th schedule to the 1999 Constitution, as amended and Section 23(1) of the Code of Conduct Bureau and Tribunal Act contain a provision to the effect that the National Assembly may prescribe “such other punishment” other than the current ones to be imposed by the tribunal. This clearly shows a possibility of the National Assembly imposing sanctions of fines and or imprisonment for offences under the Act or paragraph 18 of the 5th schedule to the said 1999 Constitution, as amended, if so desired.” PER W.S. ONNOGHEN, J.S.C.

JURISDICTION OF THE CODE OF CONDUCT TRIBUNAL – WHETHER THE JURISDICTION OF THE CODE OF CONDUCT TRIBUNAL EXTENDS TO ISSUING A BENCH WARRANT
“It is a peculiar tribunal crafted by the Constitution. 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.” PER W. S. ONNOGHEN, J.S.C.

ATTORNEY-GENERAL – CONSTITUTIONAL POWERS OF THE ATTORNEY-GENERAL OF THE FEDERATION IN INITIATING CRIMINAL PROSECUTIONS AS ENSHRINED IN SECTION 174 (1) AND (2) OF THE 1999 CONSTITUTION (AS AMENDED)
“The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings (sic) (prosecution) against any person before any court of law in Nigeria, other than a Court-Martial, in respect of any offence created by or under any Act of the National Assembly;
(b)
(c)
(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.” PER W. S. ONNOGHEN, J.S.C.

ATTORNEY-GENERAL’S POWER OF PUBLIC PROSECUTION- WHETHER THE ATTORNEY GENERAL’S POWER OF PUBLIC PROSECUTION CAN BE DELEGATED
“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-General’s power of public prosecution is not exclusive as any other authority or person can institute and undertake criminal prosecution – see F.R.N vs Adewunmi supra, at 418-419, where this Court stated, inter alia thus:
These sections though very familiar in content do not require that the officer can only exercise the power to initiate criminal proceedings if the Attorney-General expressly donated his power to them. The provisions of this section presumed that any officer in any department of the Attorney-General’s office is empowered to initiate criminal proceeding unless it is proved otherwise. .. ” See also FRN vs Osahon (2006) 5 NWLR (pt 973)361

Another provision that needs looking into in trying to resolve the issue under consideration is sections 2 and 4 of the Law Officers Act, Cap. L 8,LFN 2004 which enact as follows:-
“2. The office of the Attorney-General, Solicitor General and State Counsel are hereby created
,4. The Solicitor General of the Federation in the absence of the Attorney-General of the Federation may perform any of the duties and shall have the same powers as are imposed by law on the Attorney-General of the Federation.” PER W.S. ONNOGHEN, J.S.C.

JURISDICTION- MEANING OF JURISDICTION
“The meaning of the word jurisdiction has been accepted – as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the present case may be prescribed, as it has been prescribed by statute under which the Court or Tribunal was created. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in National Bank Vs Shoyoye (1975) 2 SC.181. To put it in another way, a Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so. See Kalio Vs Daniel Kalio (1975) 2 Sc. 15.”PER M. MOHAMMED, C.J.N.

COMPETENCE OF A COURT/TRIBUNAL – INGREDIENTS THAT DETERMINES THE COMPETENCE OF A COURT/TRIBUNAL
Since it is the competence of the Tribunal that is being challenged in this appeal, the law is that a Court or Tribunal is only competent when:
“1. It is properly constituted with respect to the number and qualification of its members;
2. The subject matter is within its jurisdiction;
3. The action is initiated by the due Process of law; and
4. The condition precedent to the exercise of jurisdiction has been satisfied.”
as laid down by this Court in its leading decision on this subject in the case of Madukolu & Ors Vs Nkemdelim & Ors (1962) All NLR 587 per Bairamain, JSC. The failure to satisfy any one of these conditions is fatal to the exercise of jurisdiction and adjudication.” PER M. MOHAMMED, C.J.N.

INTERPRETATION OF STATUTES – CLEAR, PLAIN AND UNAMBIGUOUS WORDS MUST BE GIVEN THEIR ORDINARY MEANING
“The words therefore must be given their ordinary meaning unless such interpretation would lead to manifest absurdity or unless the context requires some special or particular meaning to be given to the words. See Bronik Motors Vs Wema Bank (1983) 1 SCNLR 296.” PER M. MOHAMMED, C.J.N.

PROVISIONS OF THE CONSTITUTION – SUPREMACY OF THE PROVISIONS OF THE CONSTITUTION
“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 Vs Adewunmi (2007) 10 NWLR (Pt.1042) 399 at 418-4)9.” PER M. MOHAMMED, C.J.N.

ACADEMIC ISSUES – ATTITUDE OF THE COURT TO ACADEMIC ISSUES
“This court is always loathe in pursuing academic issues and as a court does not make orders in vein. See: Iweka v. SCOA (2000) 3 SC 21 at 29; Ukejianya v. Uchendu (1950) 12 WACA 45; Nkwocha v. Govt, of Anambra State (1984) 1 SCNLR 634”. PER I.T MUHAMMAD, J.S.C

DOCTRINE OF COVERING THE FIELD – EFFECT OF THE DOCTRINE OF COVERING THE FIELD IN THE CONSTITUTION
“Where the doctrine of covering the field is in vogue in the Constitution, any other legislation on the same field whether by the Federal/State government must bow to the dictate of the Constitution. That other law/legislation, if not repugnant, must be supplemental or subsidiary to the Constitutional provision. See: INEC v. Musa (2003) 3 NWLR (Pt.306) 72 at pp. 158; 203 – 205; A – G Ogun State v. A. G. Federation (1982) 3 NCLR 166 at p. 176; A – G Abia State v. A – G Federation (2002) 6 NWLR (Pt.763) 264 at pp. 391 – 392”. PER I.T MUHAMMAD, J.S.C

POWERS OF THE ATTORNEY-GENERAL – WHETHER THE POWERS OF THE ATTORNEY GENERAL TO INITIATE CRIMINAL PROCEEDINGS CAN BE DELEGATED
“Delegation of the powers of the Attorney-General whether of the Federation or State as donated to him by the Constitution, to officers of his Ministry or to Agencies such as the Police, the Code of Conduct Bureau, Economic and Financial Crimes Commission, the Customs, the Nigerian Deposit Insurance Corporation (NDIC), the National Drug Law Enforcement Agency (NDLEA) and even to private legal practitioners, to initiate criminal proceedings against any person alleged to have committed an offence, is not strange or a novelty. This court, per Belgore, JSC (as he then was, later, CJN) (retired), did observe as follows:
“It is clear from the provision of Section 160 of the 1979 Constitution that the Attorney-General’s powers of public prosecution is not exclusive; the ‘any other authority or person’ in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit insurance Corporation are also authorities that can institute criminal proceedings under Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 1994.”
See the case of Comptroller of Prisons v Adekanye (2002) 15 NWLR (Pt.790) 318 at p,329”. PER I.T MUHAMMAD, J.S.C

ATTORNEY-GENERAL – WHETHER THE ABSENCE OF AN ATTORNEY GENERAL FROM OFFICE SHOULD RENDER THE OFFICE INACTIVE
“The absence of an Attorney-General from office either on the basis of non-appointment of one or on the basis of infermity of body or mind of the occupant of that office, that office must remain alive and active. Assignments placed on the office by the Constitution or other statutes must not stagnate but must be carried out by other competent officers of the office.” PER. I.T MUHAMMAD, J.S.C

DELEGATION OF POWERS OF THE ATTORNEY GENERAL – INSTANCE WHERE THE DELEGATION OF POWERS CONFERRED ON THE ATTORNEY GENERAL OF THE FEDERATION CAN BE CONFERRED ON THE SOLICITOR GENERAL OF THE FEDERATION
“The Law Officers’ Act details the matter of delegation of powers conferred on the Attorney-General of the Federation by statute, on the Solicitor-General of the Federation whenever there is no incumbent Attorney-General in office as in the present case.” PER I.T. MUHAMMAD, J.S.C

CHARGE – PRESUMPTION OF REGULARITY OF A CHARGE SIGNED BY AN OFFICER OF THE ATTORNEY GENERAL
“My lords, the presumption of regularity is sacrosant. Where a legal practitioner informs the court that he was authorised (as did Mr. Hassan), the court/tribunal must believe the counsel. It is left for the party challenging him to prove otherwise. See: Comptroller of Prisons v. Adekanye (supra), page 330 B- D.” PER I.T. MUHAMMAD, J.S.C

INTERPRETING THE PROVISIONS OF THE CONSTITUTION – PRINCIPLE FOR INTERPRETING THE PROVISIONS OF THE CONSTITUTION
“In interpreting provisions of the Constitution or indeed any statute the settled principle is that where the words used are devoid of ambiguity, same must be given natural meaning. In other words, where the words used are clear and unambiguous, they must be given their plain and ordinary meaning. See: Dangana v. Usman (2013) 6 NWLR (Pt.1349) 50 at page 93 B – D; Amadi v. INEC (2013) 4 NWLR (pt.1345) 595 at pages 633 D-F and 634-635 H-C”. PER I.T MUHAMMAD J.S.C

SUPREMACY OF THE CONSTITUTION –THE PROVISION OF THE CONSTITUTION SUPERCEDES THE PROVISIONS OF AN ACT/STATUTE ON THE SAME SUBJECT MATTER
“The time honoured principle of law is that where ever and whenever the Constitution
speaks, any provision of an Act/Statute, on the same subject matter, must remain silent. See: INEC v. Musa (2003) 3 NWLR (Pt 806) 72; A – G Ogun State v. A – G Federation (1982) 2 NCLR 166”. PER I.T MUHAMMAD J.S.C

INITIATION OF ACTION BY THE ATTORNEY- GENERAL – WHETHER THE ABSENCE OF A SITTING ATTORNEY GENERAL AFFECTS AN ACTION INITIATED BY A LAW OFFICER IN THE MINISTRY OF JUSTICE
“The Attorney-General acts in person or through officers in his department and when a prosecution is initiated by any law officer in the Ministry of Justice it is immaterial that there is no sitting Attorney-General. See The State vs Obasi (1989) 9 NWLR (Pt. 567) 686. PER N. S. NGWUTA, J.S.C.

CRIMINAL PROCEEDING – STATUS OF AN INFORMATION FILED AGAINST ANY PERSON BY A MEMBER OF THE DEPARTMENT OF THE ATTORNEY- GENERAL
“Once an information is filed against any person by a member of the department of the Attorney-General it is taken for granted that he did so in accordance with the instruction of the Attorney-General. See Christopher Awooetu v. The State (1976) R (Pt. 1) 5 at 18-20; Onwuka v. The State (1970) 1 All NLR 159; A G Western Nigeria v. The African Press Ltd & Anor (1965) 1 All NLR 9,” PER N. S. NGWUTA, J.S.C.

STATUTORY INTERPRETATION- OBJECT OF STATUTORY INTERPRETATION
“The main object of statutory interpretation is to discover the intention of the lawmaker, which is to be deduced from the language used. See Buhari Vs Yusuf (2003)14 NWLR (Pt. 841) 446 @ 535. The golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous they must be given their natural and ordinary meaning unless to do so would lead to absurdity or inconsistency with the rest of the statute. Ibrahim Vs Barde (1996) 9 NWLR (pt.474) 513: Ojokolobo Vs Alamu (1987) 3NWLR (Pt.61) 377 @ 402 F – H: Adisa Vs Oyinwola & Ors. (2000) 6 SC (Pt.II) 47: Uwazurike & Ors. VS A.G. Federation (2007) 2 SC 169: Nigerian Army Vs Aminu Kano (2010) 5 NWLR (Pt.1188) 429. It is also trite that when interpreting the provisions of a statute the court must not ascribe meanings to clear, plain and unambiguous provisions in order to make such provisions conform to the court’s view of their meaning or what they ought to be. See: A.G. Federation Vs Guardian Newspapers Ltd (1999) 9 NWLR (Pt.618) 187 @ 264 G — H.” PER K. M. O. KEKERE-EKUN J.S.C.

CONSTITUTION – SUPREMACY OF THE CONSTITUTION
“The Constitution is the supreme law of the land. It is the grundnorm i.e it is the basic law from which all other laws of the society derive their validity. Section 1 (1) of the 1999 Constitution (as amended) provides:
1. (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria, (3) If any other law is Inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall, to the extent of the Inconsistency be void.
See: Abacha Vs Fawehinmi (2000) 6 NWLR (Pt.660) 228: P.D-P- Vs C.P.C. (2011)17 NWLR (Pt.1277) 485. PER K. M. O. KEKERE-EKUN, J.S.C.

Statutes Referred To
Administration of Criminal Justice Act, 2015,
Advance Fee Fraud Act, Cap A6 LFN 2010;
Code of Conduct Bureau and Tribunal Act; Cap. C15 LFN, 2004
Constitution of the Federal Republic of Nigeria 1999 (As Amended)
Economic and Financial Crimes Commissions (Establishment, Etc) Act Cap El LFN 2004
Evidence Act 2011
Interpretation Act
Law Officers Act, Cap. L 8,LFN 2004

2 Comments

  1. anthony lesuanu says:

    quite fascinating and tactical reasonings

  2. Andrew J says:

    I read this judgement with my illuminating eye….

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