The former president of the Obafemi Awolowo University Students' Union and a law graduate, Ibikunle Motunrayo Issac has stated and posited what he regarded as the true position of the law despite diverging opinions from astute legal luminaries on the war between the Senate President, Dr Bukola Saraki and the Code of Conduct Bereau (CCB) over his assets declaration.
On Friday, the Code of Conduct Tribunal (CCT) issued a bench warrant against Saraki mandatting the Police and other security apparatus to produce him in the Tribunal on Monday. Saraki had gone to the Federal High Court in Abuja to question his trial in the CCT. The Senate President has also reportedly filed an appeal against the bench warrant issued against him.
Ibikunle throws light on the matter and states his own position on the issue.
SARAKI'S ARREST ORDER, CCB, CCT, FHC and THE LAW
(As at 19/09/2015)
So far the public, the media and even lawyers have been divided on the battle between the Senate President, Bukola Saraki and the Code of Conduct Bureau and Tribunals (CCB and CCB) along political and fraternal affiliations and sentiments. Beyond these judgments which are based on mere affiliations and sentiments, I found it more pressing the need to inform and guide the public, especially the masses on the real issues and probable reasonings involved to save us from being naively caught up in the current struggle of superiority between members of our political class.
From all the melodramatic displays and exchanges however, the following three (3) issues can be formulated. The first two can be issues of determination before the court of law and which I shall deal with hereafter; the third before the court of public opinion and as such I shall omit in my discussion because of the sentiments both sides have generated.
The issues include:
1. Whether the CCT is inferior to the FHC and/or subject to the judicial review power of the Federal High Court (FHC)?
2. Whether the charges against Saraki brought by the CCB through the Director of Prosecution in the Ministry of Justice without an existing Attorney General of the Federation (AGF) are competent in law?
3. Whether with certain past and unfolding events about the CCT, CCB and Saraki, the whole actions amount to witch-hunt or rather an attempt to evade corruption charges?
ISSUE ONE
Despite the seemingly lack or scarcity of Supreme Court decisions that expressly rule on the question of inferiority of CCT to FHC or coordinate jurisdictions of the duo, same question can be settled by resort to the unambiguous provisions of the highest law of the land, the 1999 Constitution of the Federal Republic of Nigeria, 2011 as amended ( to be hereinafter referred to as the 1999 CFRN).
Sections 4 and 5 of the 1999 CFRN deal with legislative and executive powers while section 6 deals with judicial powers. The latter section is the basis of all other provisions of the Constitution or all other Acts in relation to the judiciary. By virtue of the combined provisions of section 6(3) & (5)(a)-(i), a FHC is EXPRESSLY mentioned to be part of "the only superior courts of records in Nigeria". It is trite law that expressio unius est exclusio alterius, an express mention of one thing is the exclusion of others, as such, CCT is not part of superior courts and accordingly it's an inferior court.
This conclusion is also supported on the following grounds:
(1) paragraphs (j) & (k) of the same section 6(5) go further to provide for "such other courts as may be authorized by law" and this by virtue of express exclusion above invariably include courts like the CCT, Magistrate courts, etc;
(2) by the fact that the officers of the CCT are not judicial officers by virtue of the exclusion of the officers of the CCT in the list of judicial officers under interpretation section 318 of same 1999 CFRN. As such the officers of the CCT just as those of the Magistrate courts and of tribunals or committees acting in quasi-juducial committees are inferior to the officers of courts of superior records in terms of judicial hierarchy and powers.
It follows from the above premises therefore, that the CCT is not merely a court of inferior records, its proceedings and powers are also subject to the judicial review powers of the FHC such as order of prohibition or injunctions, restraining a lower court like CCT, either in the interim or perpetuity, from proceeding with a trial such as in this instant case of Saraki.
Meanwhile, it, needs be added that judicial review is not the same thing as an appeal, accordingly, the High Court or the FHC only has power to consider the manner (question of compliance with due process such as issue of jurisdiction as in this case) in which the decision is or is to be reached by the lower court and not the correctness of the decision is or is to be reached by the lower court and not the correctness of the decision itself- Governor of Oyo State v. Folayan (1995) 9 SCNJ 50 at 83, per Ogundare JSC.
ISSUE TWO
On the authority of the Federal Republic of Nigeria v. Osahon (2006) 5NWLR (Part 973)361 at pg 411 para C-G, per Kutigi JSC, it is settled that by virtue of the provision of section 174(1) & (2), the absence of AGF does not prevent an officer in the office of the AGF or a private prosecutor from instituting a charge against an accused person.
However, it must be noted that the Counsel to Saraki are not basing their argument on the construction of section 174 of the 1999 CFRN, rather, smartly though, on the construction of section 24(2) of the Code of Conduct Bureau and Tribunal Act 2004 (Decree 1989 No. 1, to be hereinafter referred to as CCBT Act 2004) which makes use of the word ''shall'' and EXPRESSLY requires authorization by the AGF unlike section 174(2) of the 1999 CFRN which uses the word "may" and DO NOT EXPRESSLY require authorization.
For the FHC to determine this issue, the court would have to consider inter alia:
(1) whether the use of the word "shall" and the express requirement of authorization are mere rules of procedure which can be dispensed with in the interest of Justice ( see the Court of Appeal in Oladele Ogunsakin v. Rotimi S. Ajidara (2008) 6 NWLR Pt 1082 1 @ 12) and as such do not amount to a condition precedent which denies the CCT the jurisdiction to hear the case?
(2) whether the interpretation given to section 174 of the 1999 CFRN overrides the apparently-differently-couched express provision of section 24(2) of the CCBT Act 2004, on the ground that
(a) the former is a grundnorm? or
(b) to hold otherwise would mean the court is given to legal technicalities and not substantial justice? A position the Supreme Court has frowned at In plethora of cases such as Nishizawa Ltd v. Jethwani (1984) 12 SC 234 Per Oputa JSC.
CONCLUSION
Which ever way the decisions of the courts would go, the events in court as from Monday 21st till God-knows-when are going to be of great essence that will either strengthen or weaken our democracy.
ISAAC M. IBIKUNLE
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