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The Code Of Conduct Enshrined In The Constitution Of Nigeria And Its Crucial Importance In The Fight Against Corruption

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It is a great honour and a privilege being invited to present a paper by the Legend and Patriarch, Professor Ben Nwabueze SAN, before a noble and distinguished audience on the occasion of the inauguration of Ben Nwabueze Centre for Studies in Constitutional Law and Related Subjects.  My profound gratitude to Professor Nwabueze, foremost Constitutional Lawyer, founder and the Executive Secretary Adaeze Nwabueze, a magnificent team; in appreciating great efforts towards the historic launch of the first Centre for Constitutional Law and related subjects in our part of the World, we SALUTE Africa's Intellectual Giant and Paragon.

The two issues I was asked to dissect in my paper are as follows:

1) Whether a criminal prosecution before the Code of Conduct Tribunal (CCT) is competently initiated by a Director in the Federal Ministry of Justice in the absence of an incumbent Attorney General of the Federation

2) Whether the Tribunal is properly constituted to try the case sitting with its Chairman and one other member.

ISSUE ONE
Whether a criminal prosecution before the Code of Conduct Tribunal (CCT) is competently initiated by a Director in the Federal Ministry of Justice in the absence of an incumbent Attorney General of the Federation?

Professor Nwabueze SAN has meticulously and painstakingly set it out in his paper, many scholars persuaded by his reasoning. Having regard to the constitutional importance of the issues raised, I respectfully submit that the duties assigned to the Attorney General of the Federation in section 174 (1) of the Constitution of the Federal Republic of Nigeria, 1999 to wit:

“The Attorney- General of the Federation shall have power-

  1. To institute and undertake criminal proceedings 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;
  2. To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
  3. To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”

Section 174(2) that “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 in his department.”

Shall be exercised by the Attorney General in person or through officers in his department, authorized by him or Lawyers to whom he donates his powers.  In interpreting section 174 (1) and (2) of the 1999 Constitution, the revered Justices of the Supreme Court in SARAKI v. F.R.N (2016) 3 NWLR (Part 1500) page 531 at 582 para D-G held the view that the Attorney-General's power of public prosecution is not exclusive to him as any other authority or person can institute and undertake criminal prosecution without his authority. Their Lordships relied on F.R.N v. ADEWUNMI  (2007) 10 NWLR (Part 1042) 399.

It is significant we condense the facts in F.R.N v. ADEWUNMI (supra) Chief M. A. Agbamuche SAN, the Attorney General of the Federation, at the time, by letter dated 3rd August, 1995 appointed Emeka Ngige Esq., a private legal practitioner, as a prosecuting counsel for the Failed Banks Tribunal Lagos Zone and gave Mr. Ngige the fiat to prosecute cases arising from the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree N0. 18 of 1994. By a charge sheet dated 24th March, 1997 of eighteen counts, the Appellant, the Federal Republic of Nigeria initiated proceedings against the Respondent, Senator Olawole Julius Adewunmi at the Failed Bank Tribunal, Enugu. The charge sheet signed by Mr. Ngige. The trial commenced at the Tribunal but could not be completed before 29th May 1999. Before the advent of civilian administration 29th May 1999, Decree N0. 18 of 1999 was repealed and the Tribunals (Certain Consequential Amendments, etc.) Decree N0. 62 of 1999 promulgated under which all matters pending before the Failed Banks Tribunal were transferred to the Federal High Court or State High Courts as the case may be. Pursuant thereto the criminal matter against Senator Adewunmi (respondent) was transferred from Enugu to the Federal High Court, Lagos.

On 27th October, 1999 an amended charge was signed by the Assistant Chief Legal Officer in the Federal Ministry of Justice and also by Emeka Ngige Esq., as Prosecutor on behalf of the Attorney-General of the Federation.  On 28th October, the respondent was arraigned in Lagos and he pleaded “not guilty” to the amended charge of nineteen counts.

By summons on notice dated 13th April, 2000 the Respondent sought an order striking out the charge for want of jurisdiction on the grounds that the charge was not instituted in accordance with the Constitution and that Emeka Ngige Esq., lacked the authority to sign the charge sheet on behalf of the Attorney General of the Federation. The Respondent claimed the AGF could not delegate his power to initiate criminal proceedings to a private legal practitioner. The trial court held that the charge was competent and constitutional and that it had jurisdiction to hear the matter.

Whereupon appeal to the Court of Appeal filed by the Respondent against the ruling of the Federal High Court Lagos; the appeal was allowed; the Court of Appeal held that the amended charge filed against the respondent on 28th October, 1999 signed by both the Assistant Chief Legal Officer and Emeka Ngige Esq., was invalid, incompetent and unconstitutional.

Dissatisfied with the ruling, the Appellant appealed to the Supreme Court. In determining the issues, the Supreme Court considered the provisions of Section 24(2) & (3) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree N0. 18 of 1994, Section 2(3) of the Tribunals (Certain Consequential Amendments, etc.) Decree N0. 62 of 1999 and Section 56(1) of the Federal High Court Act, 1973 and held, unanimously allowing the appeal that the Attorney-General of the Federation or State as the case may be has the powers to institute criminal proceedings against any person under the 1999 Constitution by himself or through officers in his department or by a private legal practitioners through the AGF's fiat.

Distinguishing F.R.N v. Adewunmi from Saraki v. F.R.N (supra), there was an Attorney General of the Federation in the person of Chief M. A.  Agbamuche SAN who donated his power to initiate criminal proceedings to Emeka Ngige Esq. In Saraki v. F.R.N there was no lawyer appointed to act as AGF to carry burden and benefits of the office of AGF.

In tandem with the decision of the Supreme Court in Attorney General of Kaduna State vs Hassan (1985) 2 NWLR (Pt 8)p. 483 splendidly captured in the lead paper of Professor Ben Nwabueze SAN.

The lead judgment of Irikefe JSC in Attorney-General of Kaduna State v. Hassan (supra) is instructive, where the Supreme Court held at page 503: “Under section 191 of the 1979 Constitution, the exercise of the powers of the Attorney-General is personal to him and cannot be exercised by any other functionary unless those powers have been delegated to him by the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney-General in office who can be donor of the powers.”

Also the Socrates of the Supreme Court, Oputa JSC at page 521 said:

“I am fully satisfied that under Section 191(2), the powers conferred on the Attorney-General to withdraw proceedings under S.191 (1)(c) can be exercised by the Attorney-General personally or by anyone he specifically delegated that power to withdraw any case. In the absence of such specific delegation, which is usually gazetted, no officer of the Department, not even a Solicitor-General, can withdraw a criminal case acting under Section 191 of the Constitution. It then follows naturally that where there is no incumbent Attorney-General, the powers given to him by Section 191 will, as it were, lie dormant. The question of delegation will arise only where there is someone, constitutionally competent, to make that delegation. Where therefore, as happened in Kaduna State during the period under review, there was no Attorney-General, the Solicitor-General, who cannot act without delegation from the Attorney-General, was acting unconstitutionally when he withdrew Charge No. KDH/28C/81 pending before Aroyewun, J. I am in complete agreement with the argument, reasoning and conclusion of my learned brother, Irikefe, J.S.C., in his lead judgment with regard to the issue whether or not the Solicitor-General of Kaduna State acted constitutionally in withdrawing the criminal case before Aroyewun, J., and I adopt same as mine. I will therefore uphold and affirm the judgment of the court of first instance (the judgment of Chigbue, J.) and the majority judgment of the Court of Appeal, Kaduna Division (which is the judgment of the Court) on the interpretation and application of Section 191 of the 1979 Constitution.”  Emphasis by Professor Nwabueze, adopted.

Furthermore, the former Chief Justice of Nigeria, the Honourable Justice Uwais, GCON underscored it at pages 513 – 514 that:

“There can be no doubt that the powers given to the Attorney-General of a State under section 191 of the Constitution belong to him alone and not in common with the officers of the Ministry of Justice. Such Officers can only exercise the powers when they are specifically delegated to them by the Attorney-General. The delegation usually takes the form of a notice in the Official Gazette. As there was no Attorney-General appointed for Kaduna State at the time material to this case, his powers under section 191 could not have been delegated to the Solicitor-General.”

Pundits point to section 4 of the Law Officers Act CAP L8 L.F.N 2004 that: “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.” The stipulation of the Law Officers Act is in conflict with the provisions of section 174 of the Constitution 1999, and the Constitution being Suprema Lex, section 4 of the Law Officers Act is unconstitutional and ought to be rendered ineffective once a judicial opportunity presents to.

In Saraki  -vs- F.R.N (2016) 3 NWLR (supra) Kekere-Ekun JSC read a concurring judgment to the lead judgment of Onnoghen JSC, and opines that the 1999 Constitution is the Supreme Law, the grundnorm from which other laws derive validity and that section 2 of the Constitution celebrated: “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 v. Fawehinmi (2000) 6 NWLR (Pt. 660) 227; P.D.P v. C.P.C (2011) 17 NWLR (Pt. 1277) 485.

Therefore where the Attorney General of the Federation has not been appointed to occupy the office of AGF, one cannot seriously argue that a Director or other officers in the Federal Ministry of Justice would exercise the AGF's power to initiate criminal proceedings against anyone in exercise of the powers conferred on the Attorney General of the Federation by Section 174(1) & (2) Of the Constitution of the Federal Republic of Nigeria 1999. Regardless of the Law Officers Act, a subordinate and scanty piece of legislation cannot override the rich text of our constitutional provision.

However, we must pause to ponder whether powers exercised or donated by incumbent AG are asphyxiated when AG leaves office.  To take care of the concerns that the administration of criminal justice would come to a complete halt as pending criminal matters would stop whenever Attorneys General exit and resume when they assume office.  For the avoidance of doubt, criminal proceedings would not come to abrupt end as pending matters authorized by the AG or AGF remain pending despite a natural person not being appointed to the office of the Attorney General.

ISSUE TWO:
Whether the Tribunal is properly constituted to try the case sitting with its Chairman and one other member.

Paragraph 15(1) of the 5th Schedule to the 1999 Constitution 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.”

Ordinary dictionary defines “consist” to mean “form” “compose” “comprise”. Three is the required number to achieve harmony e.g. in the event of a tie, the third member would break the tie. Won't he or she? Therefore the draftspersons are right in making “3” mandatory for the Tribunal to be able to sit in judgment where three (3)“consist” or “form” a Tribunal session.  It is my respectful view that words should be given their ordinary meaning.

In Nigerian Army vs. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429 at 460, the Supreme Court per I.T Muhammed JSC held that “words as clear as sunlight” ought not to be truncated as such words would not require further interpretation other than their “plain and ordinary meaning”, reference to Everard vs. Poppleton (1884) 5 QB 181 at 184 where Lord Denham observed: “Nothing is more unfortunate than a disturbance of the plain language of the legislation.”   With profound respect, Courts are not to construe the Constitution outside unambiguous words in the Constitution.

The provisions of the Constitution being sacrosanct cannot be amended, altered or removed except by a subsequent constitutional amendment. Therefore importing the words 'two is a quorum' under the guise of applying Interpretation Act where an ambiguity does not arise defeats its ordinary, natural and plain grammatical construction.  See Amadi vs- INEC (2013) 4 NWLR (Part 1345) 595 at 627-628 per Onnoghen JSC; Global Excellence Communication Limited vs- Duke (2007) 16 NWLR (Part 1059) page 22; A-G Lagos State vs- Eko Hotels Limited (2006) 18 NWLR (Part 1011) 378; F.R.N vs, Osahon (2006) 5 NWLR (Part 973) 361; Adisa vs. Oyinwola (2000) 10 NWLR (Part 674) 116.

*** CAROL AJIE LL.B (Hons) Benin; B.L (Lagos) MCIArb (UK) LL, M (Georgetown) delivered this paper at the Inaugural Law Conference of the Ben Nwabueze Centre For Studies in Constitutional Law and Related Subjects.

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