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The CCT And The Matter Involving Dr Bukola Saraki – A Case Study

Posted: Apr 17, 2016 at 3:00 am   /   by   /   comments (0)

Ben Nwabueze

Issue Two
Whether the word “tribunal” in the name Code of Conduct Tribunal (CCT) signifies a court in the distinctive sense in which the term is used in the constitution of Nigeria 1999, i.e. as a term with attributes and incidents that distinguish it from a tribunal in the general sense.

2.1 Before the intrusion of military rule into our governmental system, and the creation by decrees of the Federal Military Government (FMG) of a plethora of tribunals or special tribunals invested with jurisdiction to try and punish a miscellany of criminal offences, tribunals, though not unknown, were generally regarded as a special specie different from, and not forming part of, our ordinary court system. With the creation of so many of them by the FMG, to meet the need, as their creation was rationalized, of expedition and the avoidance of undue technicality in the trial of economic or anti-social crimes (see my book ‘Military Rule and Constitutionalism in Nigeria’ (1992) pp. 59 – 97) they remained still and functioned outside the ordinary court system.
2.2. But we are now told that there is no difference between the two. Justice Ademein, Justice, Court of Appeal (JCA), delivering the majority judgment of himself and Justice Mustapha JCA, Justice Ekanem JCA, dissenting, tells us, after a rather academic and unhelpful recitation, covering three pages, of the definition of the two terms in four dictionaries, that “there is no significant difference between a ‘court’ and a ‘tribunal’, and that the difference between [them] is a matter of mere nomenclature and or semantic.” The CCT, he held, citing in support an earlier decision of the Court of Appeal, is “a special court”: see Attorney-General of the Fedn & 2 Ors. v. Alhaji Atiku Abubakar (2007) 8 NWLR (Pt 1035) 117
2.3. But surely the issue before the court is not whether there is a difference between a court and a tribunal in the general sense in which the two are used and understood, nor even in the sense in which they are understood in our legal system in general, but rather whether there is a difference between them in the sense in which they are used in the Constitution of Nigeria 1999.
2.4. Our constitution is replete with numerous references to a “court” or a “court of law” and a few references to a ‘tribunal’. A look at the context in which the word “court” is used in the constitution leaves it in no doubt that the constitution attaches to it a meaning different from a tribunal in the general sense. But such inquiry will be laborious. Happily, we do not have to go through the entire constitution for this purpose; we only need to look at section 6, which is unequivocal that a court in the sense of the constitution is not just any tribunal, but one in which judicial power is vested.
2.5. Section 6(5) then goes on to list by name nine courts embraced in the vesting of judicial power, namely –
“(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja
(e) the High Court of a State;
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja
(i) a Customary Court of Appeal of a State”.
2.6. The section further states in its sub-section (3) that the nine named courts “shall be the only superior courts of record in Nigeria, and save as otherwise prescribed by the National Assembly or by the House of Assembly of a state, each court shall have all the powers of a superior court of record.”
2.7. The CCT is not listed by name in section `6(5). The question, however, is whether it is embraced in the residual clause in section 6(5) (j) “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws”. (emphasis supplied)
2.8. In interpreting the residual clause (section 6(5)(j), attention needs to be drawn to the provision with which section 6 begins (i.e. section 6(1)). It says “the judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the federation”. The word “court” is in bold to emphasise that the provision, equally as the provision in the residual clause (s.6(5)(j)), has in contemplation a “court” strictly so-called; it did not say a court or tribunal, as in some other provisions, e.g. section 36(1), (4) & (9). Secondly, the CCT was established by the constitution, and if it was intended to be included in the listing in section 6(5), it would have been mentioned by name like the nine courts so named, and not left to be inferred from the residual clause (i.e. section 6(5)(i).
2.9. The distinctive meaning of the word, “court” under our constitution is well captured by Ekanem JCA in his dissenting judgment when he held as follows:
“It [i.e. the CCT] is in my view not a superior court of record as envisaged by Section 6(3) and (5) (a) – (i) of the Constitution of Nigeria 1999 (as amended). It is not included in subsection 5(a) – (i) as one of the superior courts of record in Nigeria”, citing in support National Union of Electricity Employees v. Bureau for Public Enterprises (2010) 7 NWLR (1194) 536.
2.10. It follows from what is said above that the CCT is not a court in the sense of section 6 of our constitution, and is not one of the courts in which judicial power is vested by the said section 6.

Meaning and incidents of judicial power

2.11 Judicial power has been defined in many decisions of the highest courts – the U.S. Supreme Court, the Privy Council and the High Court of Australia. These decisions are discussed in my book ‘Judicialism’ (1977), and it is not intended to go into another discussion of them here.
2.12. But it is necessary to state that the vesting of judicial power in the judicature under section 6 has the same effect in law as the vesting of executive power in the president under section 5 and the vesting of legislative power in the National Assembly under section 4. It is as unconstitutional, null and void for the National Assembly to attempt, by means of a law made by it, to exercise, take away, transfer to other persons or otherwise usurp the judicial power vested in the judicature, or any part of it, as it is for it to attempt to do the same thing with respect to the executive power vested in the president. The decisions on the point, of which there are legion, are again discussed in my ‘Judicialism’ (1977).
2.13. What is said above is by way of introduction. The issue which is of direct bearing to the matter at hand concerns the incidents of judicial powers. It is necessary to note at the outset that judicial power is the source of the jurisdiction exercised by individual courts or judges or, putting it differently, the jurisdiction of individual courts or judges is the product of, or is derived from, the judicial power vested in the judicature by section 6 of the constitution.
2.14. The vesting of judicial power in the judicature does not, however, operate as a grant of jurisdiction to the nine courts named in section 6(5) or any of them to hear and determine any particular justiciable dispute or matter. No court can assume jurisdiction to exercise any part of the judicial power of the federation except such jurisdiction has been conferred on it by the constitution or by a law validly made by the National Assembly: see Ex parte McCardle 7 Wall 506, 514 (1868), per Chief Justice Chase. There is thus raised here a distinction between the “judicial power” of the state and the jurisdiction of individual judges or courts. The former refers to the general power of an organised political community to settle disputes among its members, or between itself and its members, and to try and punish those offending against it. The distribution or allocation of that power among individual courts or judges is a function of law-making primarily through the supreme law of the constitution, supplemented by the ordinary law. It is the specific allocations of the general judicial power that bestow jurisdiction on individual courts. Jurisdiction relates therefore to the power of a particular court to hear and determine certain cases or classes of cases; as such it has to be specifically conferred by law quite apart from the general vesting of the judicial power in the judicature. The relation between judicial power and jurisdiction is thus that between the general and the particular; the former may be regarded as the unallocated whole embracing the separate jurisdictions and powers which under the constitution and various enabling laws the courts exercise in the administration of justice. For the distribution or allocation of judicial power among the nine courts named in section 6(5), see sections 230 – 296 in chapter vii of the Constitution headed THE JUDICATURE.
2.15. More importantly, any functions appertaining exclusively to judicial power cannot be granted to a court or tribunal which is not included in section 6(5) of the Constitution as the courts constituting the judicature and in whom judicial power is vested. As to attributes necessary to judicial power and those exclusive to it, see Nwabueze, Judicialism (1977), pages 2 – 14. One such attribute or function exclusive to judicial power is the trial and, on conviction, the imposition of punishment on persons for criminal offence.
2.16. The High Court of Australia (the highest court in the country) has held in Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd (1918) 25 C.L.R. 434 at page 444, per Chief Justice Griffith for the Court:
“It is not disputed that convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to judicial powers.”
The word “exclusively” is underlined for purposes of emphasis. The learned Chief Justice has observed earlier in the judgment at page 442:
“It is impossible under the constitution to confer such functions upon anybody other than a court, nor can the difficulty be avoided by designating a body, which is not in its essential character a court, by that name, or by calling the function by another name. In short, any attempt to vest any part of the judicial power…….in any body other than a court is entirely ineffective”.
2.17 As under the Constitution of Nigeria 1999, judicial power is vested in courts specified in section 6(5), it follows that the courts so listed are the only tribunals that can try and convict a person for a criminal offence under the principle laid down by the High Court of Australia in Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd, supra. The CCT, not being so listed, cannot be authorized by an ordinary law, such as the Code of Conduct Bureau and Tribunal Act to try, convict and impose punishment on persons for criminal offences.
2.18 The other provisions of the 1999 Constitution relevant to the matter are section 35(1)(a) and 36(4). The Constitutions of 1960 and 1963 had provided that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.” (emphasis supplied) The provision was repeated in exactly the same terms in the draft of the 1979 Constitution prepared by the Constitution Drafting Committee (CDC) and adopted by the Constituent Assembly. In the final version of the Constitution as enacted into law by a Decree of Gen. Obasanjo’s Federal Military Government, the guarantee was modified to read “by a court or tribunal.” (section 36(4)). The words “or tribunal” were added in order apparently to embrace within the constitutional provision the several special tribunals created by the military government and invested with jurisdiction over a variety of criminal offences. The addition of the words “or tribunal” means that the Constitution does not regard a court and a tribunal as one and the same thing, and that it differentiates between them.
2.19 However, in modifying the guarantee to read by “a court or tribunal,” the draftsman forgot to take congnisance of the implication of an earlier provision of the Constitution (section 35(1)(a)) according to which only “the sentence or order of a court in respect of a criminal offence of which [a person] has been found guilty,” (without the addition of the words “or tribunal”), is a ground for deprivation of personal liberty by detention or imprisonment for a criminal offence committed by him. As this earlier provision (section 35(1)(a)) is the one spelling out the constitutionally permitted grounds for the deprivation of personal liberty by detention or imprisonment the addition of the words “or tribunal” in section 36(4) is of no legal effect whatever, as conviction and sentence by such a tribunal, including the CCT, is not a constitutionally permitted ground for detention or imprisonment. This conclusion is reinforced by the vesting of judicial power in the courts, with the consequence of precluding trial, conviction and punishment for criminal offences by a tribunal which is not court as specified in section 6(5). In any case, the provisions in section 35(1)(a) and section 36(4) grant no jurisdiction to any court or tribunal; they only guarantee to a person the right to be tried by a court or tribunal of competent jurisdiction. Jurisdiction for the enforcement of the rights guaranteed in sections 33 – 45 is conferred on the High Court by section 46.
2.20 It is true that paragraph 15(4) of the Fifth Schedule to the Constitution empowers the National Assembly “by law to 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”. (emphasis supplied) The concern of the provision is with how the functions, but only the functions, “conferred on [the CCT]in this Schedule” can more effectively be discharged. The functions in question are those set out in para 18(1) & (2) of the Fifth Schedule, and no others; and they include “such other punishment as may be prescribed by the National Assembly” in para 18(1). It means, first, that the National Assembly cannot, by virtue of this provision, confer on the Tribunal additional powers that are inconsistent with any provisions in the body of the Constitution, including section 6, since, in the event of inconsistency between a provision in a Schedule and one in the body of the Constitution, the latter prevails, as laid down in decided authorities : see Re Baines (1840) 12 A & E 227, per Lord Cottenham L.C.; Dean v. Green (1882) 8 P.D. 79, per Lord Penzance.
2.21 Second, the National Assembly cannot, in exercise of power under paragraph 15(4), competently confer on the Tribunal additional powers not related or limited to functions conferred by the Fifth Schedule, especially where such additional functions or powers will change the character of the CCT from that of a disciplinary body, as it is conceived by the main operative provisions in paragraph 18 of the 5th Schedule, to a court with criminal jurisdiction. The additional powers that may be conferred on the Tribunal under paragraph 15(4) are only meant “to enable it more effectively to discharge its functions” as a disciplinary body under paragraph 18 i.e. “functions conferred on it in this Schedule”, not functions conferred on it by any other law.
2.22 The principle of the decision in Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd, supra, as enshrined in sections 6, 35(1)(a) and 36(4) of the Constitution of Nigeria, has been affirmed and re-affirmed by our Supreme Court. Thus, in Sofekun v. Akinyemi (1981) 1 NCLR 135 where a public officer in the public service of the then Western Region of Nigeria was dismissed upon a finding of guilt for indecent assault and attempted rape by a disciplinary tribunal constituted and empowered in that behalf under the Public Service Commission Regulations, his dismissal was held null and void by the Supreme Court as a usurpation of judicial power.
2.23. In a judgment concurred in by Irikefe, Bello, Idigbe, Obaseki, Eso and Aniagolu JJSC, Fatayi-Williams CJN said at page 146:
“It seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing…..No other Tribunal, Investigating Panel or Committee will do…If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hand of the magistrates and judges….If the Commission is allowed to get away with it, judicial power will certainly be eroded……The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever”. (Emphasis supplied)
2.24 The decision was re-affirmed by the Court in Garba v. University of Maiduguri [1986] 1 NWLR (Pt 18) 550 where some students involved in acts of rioting and arson were expelled from the University. The Supreme Court, reversing the Court of Appeal and affirming the trial court, declared the expulsion null and void: first, since the expulsion was based on criminal offences alleged to have been committed by the students, only the court, but not the Visitor, Vice-Chancellor or the investigating panel set up by the University, is, by virtue of sections 6 and 33(1), (4) and (13) of the 1979 Constitution, competent to adjudicate upon the guilt or innocence of the students for the alleged criminal offences; second, whilst the University authorities may expel a student for misconduct not amounting to a criminal offence, yet as a disciplinary body, they are bound to act judicially, comply with the constitutional requirement of fair hearing and observe the other requirement of the rule of natural justice; in this case, the students were not given a fair hearing, and as the Deputy Vice-Chancellor, being a victim of the students’ rampage (his house was burnt down), his chairmanship of the investigating panel created a real likelihood of bias in that he was thereby put in a position of being both a witness and a judge all at the same time.
2.25. Applying these decisions, the Federal High Court (FHC), per Justice Jonah Adah, held in the Dariye case that – “the Code of Conduct Tribunal is never conceived of as a court by the constitution and no legislation of the National Assembly can empower it to act as a court or dress it with judicial powers which are only meant to be exercised by the courts created by Section 6 of the constitution. This conclusion has solved most of the nagging questions yet to be answered in this case. Since the Code of Conduct Tribunal is not a court and has no power of criminal trial, it cannot issue any warrant for the arrest or imprisonment of any person under any guise. In fact the power given to the tribunal under paragraph 18 of the 5th Schedule to the constitution does not extend to ordering the arrest or detention of any person who contravenes the Code of Conduct. Any law which confers that power on the tribunal will definitely be inconsistent with the provisions of the constitution and therefore null and void.”