Can the Code of
Conduct Tribunal, CCT, continue proceedings while its jurisdiction is being
challenged at the appellate court?
General
Considerations1. The Code of Conduct Tribunal, CCT, is a creation of the
Legislature, i.e. the National Assembly. The Composition of the Tribunal is
stated in paragraph 15(1) of Part 1, Fifth Schedule of the 1999 Constitution.
It shall consist of a Chairman and two members.
Justice A.G
Karibi-Whyte
Justice A.G Karibi-Whyte
The expression
“shall” is mandatory. The qualification
of the Chairman is prescribed. Although
by paragraph 15(3) the Chairman and the members shall be appointed by the
President in accordance with the recommendation of the National Judicial
Council, the qualifications of the other two members are not prescribed. It is however unarguable that there shall be
three members to constitute the Tribunal.
Additionalpower
In sub-paragraph (4)
of Paragraph 15, the National Assembly is empowered 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 effective to discharge the functions conferred on
it in this Schedule.
Paragraph 12(1) –
(4) provides for the
tenure of the Office of Chairman and Members of the Tribunal. Paragraph 18 (1)
– (7) provides for the powers of the Tribunal i.e. the jurisdiction of the
Tribunal which is be found in Part I paragraph 1 – 13 of the Fifth Schedule.
In addition
paragraph 18(2) which prescribes the punishment is specific as to the nature of
the powers of the Tribunal. This is
paragraph 18 (2). Paragraph 18(3)
enlarges the punishment to include the penalties that may be imposed by any law
where the conduct is also a criminal offence.
Analysis of the
provisions
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. The conduct proscribed 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
of a member of 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”
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.
I have endeavoured
to state the Constitution of the membership of the Code of Conduct
Tribunal. I have also stated the powers
of the Tribunal. The fact that it is a
Tribunal created by the National Assembly, and not one of the Constitutional
Courts created in Section 6(6) of the Constitution is not in dispute.
Limitedjurisdiction
Its jurisdiction is
limited to the subject matter listed therein and a 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 – My
prompt reaction and answer is NO. It
cannot. It is well settled principle and
citations of judicial authority as precedents in support is unnecessary that
determination of the issue of jurisdiction when raised is fundamental to the
determination of the lis before the Court.
The meaning of the
word jurisdiction has been accepted – as the authority which a Court or
Tribunal has to decide matters before it or to take cognizance of 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 this case may be prescribed, as it has been prescribed by
stature 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.181
Exercise
ofjurisdiction
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; 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; 4) 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 Chairman of the Tribunal is contending that it is
competent to assume jurisdiction sitting with him and only one of its
members. This is clearly in breach of
the provision enabling the exercise of jurisdiction.
It is only properly
constituted when constituted with the Chairman and the other two members. A court or Tribunal is not allowed to ascribe
meaning to a statute merely to make it conform with its own opinion or views of
sound social policy – A-G Lagos State v. Dosunmu (1989) 3NWLR (pt. III) 552;
A-G Federation v. Sode (1990) 1NWLR (pt. III) 500.
Propercomposition
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 o member.
This is in breach of the mandatory provision which must be complied
with.
The Tribunal can
only adjudicate on a controversy when it has jurisdiction to do so. Since the issue of jurisdiction is
fundamental to the hearing of an action, it is crucial to determine in linine
at the first opportunity whether there is jurisdiction because it will be
manifestly absurd to suggest a Court can proceed with full evidence of the
parties, where the exercise if carried out eventually will result in a nullity-
see Timitimi v. Amabebe 14WACA 374.
The law is well
settled that the issue of jurisdiction can be raised at any state of the
proceedings – A-G East V. A-G(Fed) (1965) 1All NLR. 224. It is necessary for the Code of Conduct
Tribunal to discontinue the trial because the existence or absence of
jurisdiction in a Court of trial or Tribunal is at the root of the matter so as
to nullify or affirm the trial Court’s decision or order in respect of the
relevant subject matter.
Relevantsubject
See Obikoya v
Registrar (1975) 4sc. 31. Where an
inferior Court, as in this case, a Tribunal or any Court proceeds without
jurisdiction the eventual decision will amount to nothing – See Peenock Ltd. v.
Hotel Presidential Ltd. (1982) 12sc. The
CCT in this case is not properly constituted to try any case whatsoever. Its effort if allowed to continue will result
in a nullity. It should discontinue and
wait for the decision of the Court of Appeal on the issue of Jurisdiction.
Does the CCT have
criminal jurisdiction? Does anything in
the Act or indeed the Constitution of 1999, give it the powers to assume
jurisdiction not expressly granted by it by the Constitution? 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 therefore 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)
Constitution 1999. It definitely cannot
be created retrospectively – See S.36(8) Constitution 1999.
The Code of Conduct
Bureau has set out in detail conduct which should be sanctioned as breach. In the ordinary rules of construction, where
the breach of conduct has not been defined as criminal, they cannot be tainted
with a criminal hue. We cannot by mere
construction render conduct criminal. It
must be so defined by law. The schedule
only refers to criminal offences in paragraph 18(3) in respect of punishment
for breach of conduct where such conduct is also a criminal offence in a law.
Criminaloffence
This is invariably
by implication from another offence which is unlikely to have been defined and
penalty therefore defined in a written law.
Accordingly, the CCT which appears anxious to exercise of its powers in
paragraph 18 cannot be said to be vested with exercise of criminal jurisdiction
which is nowhere prescribed. This is in
excess of jurisdiction.
The Code of Conduct
Tribunal is exercising power of the Code of Conduct Bureau as stated in Part I,
paragraph 2-13 and 18(1)(2)(3) of the Fifth Schedule.
The only suggestion
of exercise of criminal jurisdiction is where in sub-paragraph (3) of Paragraph
18, the Code of Conduct Tribunal is allowed to impose any punishment without
prejudice to the penalties imposed in sub-paragraph (2) by any law, where the
conduct is also a criminal offence. This
provision did not vest the Code of Conduct Bureau or the Code of Conduct
Tribunal with criminal jurisdiction.
It merely refers to
the nature of the punishment that can be imposed after finding of guilt in
respect of the conduct proscribed. The code of Conduct Tribunal is a creation
of the National Assembly with prescribed powers and limited jurisdiction
clearly expressed in the enabling law.
It conforms with the
provisions of Section 6(5)(j) Constitution 1999. It does not enjoy the unlimited jurisdiction
vested by the Constitution 1999 in the Courts named in Section 6(5)(a)(h).
Criminaljurisdiction
The CCT is a Court
created by the National Assembly to exercise jurisdiction at first instance or
on appeal with respect with which the National Assembly may make laws. I am not
aware of any subsequent law of the National Assembly amending and increasing
the powers of the Code of Conduct Bureau and of the CCT to vest the exercise of
criminal jurisdiction in the CCT, or the exercise of another power.
I therefore, respond
to the two questions posed as follows: 1. CCT should not, as it cannot as an
inferior Court continue proceedings whilst its jurisdiction was being
challenged. 2. The CCT is not vested
with the exercise of criminal jurisdiction.
The reference to
criminal offence in the punishment it can inflict cannot be so construed. There is no provision in its enabling law to
assume jurisdiction not expressly granted.
By Justice A.G
Karibi-Whyte. Justice A.G Karibi-Whyte, retired from the Bench of the Supreme
Court
