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When Supreme Court sets precedent on CCT status

The Chief Justice of Nigeria, Justice Mahmud Muhammed

The Chief Justice of Nigeria, Justice Mahmud Muhammed

THE interest and anticipation with which many concerned stakeholders and citizens await the outcome of the decision of the Supreme Court on the pending issues bordering on the legality or otherwise of the ‘criminal jurisdiction’ of the Code of Conduct Tribunal (CCT), are mounting. As the apex court, its decision is vital to the position of law and jurisprudence in order to determine finally, the status of the CCT and its jurisdiction.

With a pending appeal, brought by a frontline politician in the National Assembly, challenging the powers of the CCT to try him, three clear issues have been distilled for consideration:

. To deal with the interpretation of paragraph 15 (1) of the Fifth Schedule of the 1999 Constitution of the Federal Republic of Nigeria, regarding the composition of CCT.
. Determine whether the CCT is a court of criminal jurisdiction; as well as,
. Answer whether a lawyer in the office of the Attorney General can file charges at the Tribunal without the express authorisation of the Attorney General as contained in section 174 (1) of the 1999 Constitution, (as amended).

In view of the serious constitutional issues raised in this appeal, the Supreme Court has decided to empanelled the full court of seven justices following a request by appellant’s counsel.
Paragraph 15 (1) of the Fifth Schedule to the Constitution (as amended), provides that the CCT shall consist of a Chairman and two members. It reads: “There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons”. Section 20 (2) of the Code of Conduct Bureau and Tribunal Act, in respect of the number of persons making up the tribunal says: “Consist of” and not “quorum”.
The appeal court’s judgment delivered on October 30, which is subject of appeal, had a split judgment of two to one. The majority judgment as delivered by Justices Moore Adumein and Mohammed Mustapha dismissed the appeal. In its majority judgment, the appeal court held that these two provisions merely provide for the establishment of the tribunal and it’s composition.
“There is no provision on 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 it’s 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 useful piece of legislative ingenuity to fill the gap or lacuna”.
Section 28 of the Interpretation Act states: “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): provided that the chairman and the member shall be present at every sitting of the tribunal, commission of inquiry throughout the duration of the trial or hearing”.

According to the Justices, Section 28 is applicable to this case, meaning, the tribunal made up of the chairman and one member is properly constituted as decided by the appellate court.
The dissenting judgment delivered by Justice Joseph Ekanem (JCA), however opposed the position of his colleagues. On the issue of whether the CCT is a court of criminal record, Justice Ekanem raised a germane point, when he said: “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…’
“It is my view it is 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 records in Nigeria.”

Some legal pundits have disagreed with the position of the lead judgment, premising it on the fact that the Interpretation Act cannot supersede the provisions of the Constitution, particularly since the Constitution as enunciated in paragraph 15 (1) of the Fifth Schedule used the word “shall”, which makes it mandatory for the tribunal to be composed of three members.

Besides, it is argued that in the event that the Chairman and the second member have dissenting opinions on a judgment, which judgment would prevail.  It is with a view to forestall this kind of scenario that the framers of the Constitution insisted on three members of the Tribunal.

On the question whether the Code of Conduct Tribunal can continue proceedings with respect to a matter while its jurisdiction is being challenged in the Court of Appeal, the retired Justice said: “My prompt reaction and answer is NO.  It cannot. “Where a Court does not have jurisdiction, there is nothing before it to adjudicate.

A retired Justice of the Supreme Court, A.G Karibi-Whyte in his analysis of the provisions, said it appears from the enabling law that the jurisdiction of the Code of Conduct Tribunal is confined and limited to the Conduct, clearly outlined in paragraphs 1–13 of the Fifth Schedule.

He noted: “The conduct prescribed has been stated in considerable detail and appears to be exhaustive.  These are the only powers it can legally and lawfully exercise.

It is pertinent to observe that the law which enables the CCT to try persons who have contravened the provisions of the Code have carefully avoided the use of the expression ‘criminal’ to describe the conduct so punished.  It does not contemplate any other conduct.  Epressio unius est exclusio alterius.
Rather, it provides in paragraph 18(3) that the sanctions in paragraph 18 (2) may be imposed, without prejudice to the penalties in any law where the conduct is also a criminal offence.
“See also the definition of ‘Misconduct’ in Paragraph 19.

Again, Paragraph 18(6) has stated clearly that a finding of guilt by the Tribunal for contravention is not a conviction for an offence in a Court of law.  Thus, rejecting the defence of autrofois convict or acuit.
The interpretation provision of Paragraph 19 has defined misconduct in the Code to mean “breach of the oath of allegiance or oath of office, a breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities.”

He said the expression, public officer, public office have also been defined.  Note Paragraph 11(3) as to presumption of proof of guilt on the accused, and Paragraph 11(2), 13 as to vicarious criminal liability of the accused.  These are presumptions of guilt on the accused which is unconstitutional.  This is not proof of mere fact in issue – See Section 36(5) Constitution of Federal Republic of Nigeria, 1999.

On the limited jurisdiction of the CCT, Justice Karibi-Whyte said: “Its jurisdiction is limited to the subject matter listed therein and prescribed by the National Assembly. “The Code of Conduct Tribunal has not been vested with exercise of criminal jurisdiction even by implication of the scope allowed in the sanction it can impose.”

On the question whether the Code of Conduct Tribunal can continue proceedings with respect to a matter while its jurisdiction is being challenged in the Court of Appeal, the retired Justice said: “My prompt reaction and answer is NO.  It cannot. “Where a Court does not have jurisdiction, there is nothing before it to adjudicate.
The limits of its authority as in this case may be prescribed, as it has been prescribed by statute under which the Court or Tribunal is created. Concisely stated jurisdiction means the authority which a Court has to decide matters contested before it, or to take cognizance of matters presented in a formal way for its decision. See National Bank v. Shoyoye (1977) 5SC.18.”

He noted: “A Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so.  See Kalio v. Daniel-Kalio (19750 2sc. 15.
A Court or Tribunal is only competent when:
. It is properly constituted with respect to the number and qualification of its members,
. The subject matter is within its jurisdiction,
. The action is initiated by the due process of law,
. The condition precedent to the exercise of jurisdiction has been satisfied. See Madukolu v. Nkemdilim (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.
“The Code of Conduct Tribunal is in the instant case without doubt, not properly constituted as to its composition.  Paragraph 15 (1) of the First Schedule has prescribed the proper composition as the Chairman and two members.  The Code of Conduct Tribunal cannot proceed with the Chairman and one member.  This is in breach of the mandatory provision which must be complied with.” He added.

The learned retired Justice concluded that where an inferior Court, as in this case, a tribunal or any court, proceeds without jurisdiction, the eventual decision will amount to nullity.
On criminal jurisdiction, he said:  “It is an accepted fundamental principle of our criminal jurisprudence, the exercise of our criminal jurisdiction that no person can be tried and convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law.

“A written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.  Hence, such a provision cannot be created by implication of the construction/interpretation of any law. See S.36(12) of the Constitution, 1999.  It definitely cannot be created retrospectively. See S.36 (8) of the Constitution, 1999.”
Karibi-Whyte added that the code of Conduct Tribunal is a creation of the National Assembly with prescribed powers and limited jurisdiction clearly expressed in the enabling law, which must conform with the provisions of Section 6(5)(j) of the Constitution, 1999.
“It does not enjoy the unlimited jurisdiction vested by the Constitution, 1999 as other courts named in Section 6(5)(a)(h).
A Lagos-based lawyer, Olukayode Majekodunmi, who aligned himself with the learned Justice’ position, as well as the minority judgment of the Court of Appeal case, said: ‘Nigerians should divulge themselves from personalities behind a case in court, and examine the matter purely based on the position of the law.’

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