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Fawehinmi v. Babangida

1.      CHIEF GANI FAWEHINMI

2.      HON. MR. JUSTICE CHUKWUDIFU OPUTA

( RTD )

3.      HUMAN RIGHTS VIOLATIONS

INVESTIGATION COMMISSION

V

1.      GENERAL IBRAHIM BABANGIDA (RTD)

2.      BRIGADIER-GENERAL A. K. TOGUN (RTD)

3.      BRIGADIER-GENERAL HALILU AKILU (RTD)

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN ( Presided )

IDRIS LEGBO KUTIGI, JSC

UTHMAN MOHAMMED, JSC

SYLVESTER UMARU ONU, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 360/2001

FRIDAY, 31ST JANUARY, 2003 

CASE LAW - Balewa vs. Doherty - Effect of on instant case

CONSTITUTIONAL LAW - Constitution,1960  - Scope of institution of tribunal of inquiry thereunder

CONSTITUTIONAL LAW - Constitution, 1963  - Scope of institution of tribunal of inquiry thereunder

CONSTITUTIONAL LAW - Act made by National Assembly - Status of Need to examine from the background of legislative power conferred on the National Assembly by the Constitution

CONSTITUTIONAL LAW - Existing laws inconsistent with the Constitution -  Power of court under section 315(3) of the 1999 Constitution to declare invalid any provision of such laws

CONSTITUTIONAL LAW - Power to make law for the establishment and regulation of tribunals of inquiry in the form of Tribunals of Inquiry Act, 1966 - Whether a residual power belonging to the states under 1999  Constitutions

CONSTITUTIONAL LAW - Power to make law for the establishment and regulation of tribunals of inquiry in the form of Tribunals of Inquiry Act, 1966 in the Federal Capital Territory - Whether resides in National Assembly

CONSTITUTIONAL LAW - Section 6(6)(d) of the 1999 Constitution Purport of

CONSTITUTIONAL LAW - Tribunal of inquiry - Failure of 1999

Constitution to make provision for tribunals of inquiry in the 1963 Constitution - Effect of

CONSTITUTIONAL LAW - Tribunal of Inquiry - General law authorising the holding of Tribunal of Inquiry into a particular Item or Items on the lists - Source of power of National Assembly to make

CONSTITUTIONAL LAW - Tribunal of Inquiry - Powers of the Federal Government to set up - Historical background of constitutional provision thereon

CONSTITUTIONAL LAW - Tribunal of Inquiry - Powers of the Federal Government to set up - Historical background of constitutional provision thereon

CONSTITUTIONAL LAW - Tribunal of Inquiry - Tribunal of Inquiry for the Federal Capital Territory - Residual power of National Assembly to constitute - Sections 4(4)(b) and 229 of the 1999 Constitution

CONSTITUTIONAL LAW - Tribunal of Inquiry - Whether the National Assembly can enact a general law for the establishment of tribunal of inquiry for and applicable in the Federation of Nigeria under the 1979  and 1999 Constitutions

COURT - Power of to declare any provision of an existing law void which is inconsistent with the Constitution - Section 315(3) of the 1999 Constitution

EVIDENCE - Matter concerning evidence - Exclusive power of National Assembly to look into - Need for a body such as a tribunal of inquiry wishing to exercise authority to receive evidence to be set up by an enactment

HUMAN RIGHTS - Human Rights Commission of Inquiry - Where set up without an appropriate legislation backing it - Status of

LEGISLATURE - Matter concerning evidence - Exclusive power of National Assembly to look into - Need for a body such as a tribunal of inquiry wishing to exercise authority to receive evidence to be set up by an enactment

LEGISLATURE - National Assembly - Whether has power under 1999 Constitution to enact a general law on tribunals of inquiry

LEGISLATURE - States Houses of Assembly - Residual power of to enact law establishing tribunal of inquiry in the states - Section 4(7)(a) 1999  Constitution

LEGISLATURE - Tribunal of Inquiry - Whether the National Assembly can enact a general law for the establishment of tribunal of inquiry for and applicable in the Federation of Nigeria under the 1979 and

1999  Constitutions

STATUTE - Act - Status of - Need to examine from the background of legislative power conferred on the National Assembly by the Constitution

STATUTE - Commission and Tribunal of Inquiry Act 1961, section 3(1) Power of Prime Minister to set up tribunal of inquiry thereunder

STATUTE - Statute setting up Tribunal of Inquiry - Basic constitutional principles underlying the validity of

STATUTE - Tribunals of Inquiry Act, 1966 - Status of

STATUTE - Tribunals of Inquiry Act 1966, sections 5(d), 11(1)(b), 11(4) and 12(2) thereof - Unconstitutionality and Invalidity of

TRIBUNALS OF INQUIRY - Statute setting up tribunal of inquiry - Basic constitutional principles underlying same

TRIBUNALS OF INQUIRY - Constitution, 1960 - Tribunal of Inquiry Scope of Institution of thereunder

TRIBUNALS OF INQUIRY - Human Rights Commission of Inquiry - Where set up without an appropriate legislation backing it - Status of

TRIBUNALS OF INQUIRY - National Assembly - Whether has power under 1999  Constitution to enact a general law on tribunals of inquiry

TRIBUNALS OF INQUIRY - Power to make law for the establishment and regulation of tribunals of inquiry in the form of Tribunals of Inquiry Act, 1966 - Whether a residual power belonging to the states under 1999  Constitutions

TRIBUNALS OF INQUIRY - Power to make law for the establishment and regulation of tribunals of inquiry in the form of Tribunals of Inquiry Act, 1966 in the Federal Capital Territory - Whether resides in National Assembly

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - General law authorising the holding of Tribunal of Inquiry into a particular Item or Items on the Lists - Source of power of the National Assembly to make

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Law establishing Tribunal of Inquiry in the States - Residual powers of the States Houses of Assembly to enact

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Power of Prime Minister to set up under Commission and Tribunal of Inquiry Act, 1961, section 3(1)

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Powers of the Federal Government to set up - Historical background of constitutional provision thereon

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Scope of Institution of under the 1960 Constitution

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Statute setting up same -  Basic constitutional principles underlying the validity of

TRIBUNALS OF INQUIRY - Tribunal of Inquiry - Tribunal of Inquiry for the Federal Capital Territory - Residual power of National Assembly

to constitute - Sections 4(4)(b) and 229 of the 1999 Constitution

TRIBUNALS OF INQUIRY - Tribunal of Inquiry Act, 1966 - Status of under the 1999 Constitution

TRIBUNALS OF INQUIRY - Tribunals of Inquiry Act 1966, sections 5(d), 11(1)(b) , 11(4) and 12(2) thereof - Unconstitutionality and Invalidity of

Issues:

1.            Whether the Court of Appeal did not in its judgment go beyond the answer required for the first question referred to it by the Federal High Court.

2.            Assuming [but without conceding] that the answer provided by the Court of Appeal to the first question was not excessive, whether the said answer is accurate enough to meet the requirements of section 295(2) of the 1999 Constitution.

3.            Whether the Court of Appeal was right in holding that sections 5( c), 10, 11(1)(b), 11(3), 11(4) and 12 of the Tribunals of

Inquiry Act contravene section 35 or 36 of the 1999 Constitution and therefore are unconstitutional and invalid. [ Note section 5(d) was inadvertently omitted. ]

4.            Whether or not the Court of Appeal was right in holding that the Tribunals of Inquiry Act Cap. 447 is an existing law and that sections 5(c), 10, 11(1)(b), 11(3), 11(4) and 12 of the same Act were invalid for not having been brought into conformity with section 315 of the 1999 Constitution of the Federal Republic of Nigeria? [Note: section 5(d) was inadvertently omitted.]

5.            Whether or not the Court of Appeal was right in holding that sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12 altogether collectively referred to as the compulsive powers under Cap. 447  are constitutional, invalid and contravene sections 35 and 36  of the Constitution of the Federal Republic of Nigeria 1999?

Facts:

The President of the Federal Republic of Nigeria constituted a Judicial Commission of Inquiry (the Commission) for the investigation of human rights violation in Nigeria. It was by a statutory instrument (No. 13 of 1999) which states that it was made by the President in exercise of the powers conferred on him by section 1 of the Tribunals of Inquiry Act 1966, now to be found in Cap. 447, Laws of the Federation of Nigeria, 1990. In the course of the inquiry the Commission issued summons for service on persons to testify as witnesses, among whom were the respondents. The respondents resisted being compelled to give evidence or to attend the tribunal as witnesses. They proceeded to court instead. The first suit was insituted by the 2nd respondent, Brigadier-General A. K. Togun (Rtd.) at the Federal High Court, Lagos against the 2nd and 3rd appellants herein as defendants. While the 2nd suit was instituted by General Ibrahim Babagida (Rtd.) and BrigadierGeneral Halilu Akilu (Rtd.). Reliefs sought and parties in the two suits are virtually the same. The suits were therefore consolidated.

The reliefs sought are as follows:

“(i) A declaration that the Tribunal of Inquiry Act, 1966, No. 41 is not an enactment on any matter with respect to which the National Assembly is empowered to make laws under the Constitution of the Federal Republic of Nigeria, 1999, and it accordingly took effect as a law enacted by the House of Assembly of a State.

(ii)         A declaration that it is not lawful for the 1st or 2nd defendants to summon the plaintiff to appear before it to testify or to produce documents.

(iii)       An order of prohibition prohibiting the 1st and 2nd defendants, their servants and agents whosoever or howsoever from -

(a)           sitting as a body empowered to exercise powers or functions claimed to be conferred upon it pursuant to the Tribunal of Inquiry Act, Cap. 447, Laws of the Federation of Nigeria or exercising any of the aforementioned powers.

(b)          using the powers conferred or purported to be conferred on him or them by the Tribunal of Inquiry Act, 1966 , to compel the plaintiff to attend a sitting of the 2nd defendant body to answer questions or to produce documents. During the course of the proceedings, the trial court made reference to the Court of Appeal pursuant to the provisions of section 295(2) of the 1999  Constitution. The questions referred to the Court of Appeal were two.

They read as follows:-

1.            Whether or not the Tribunal of Inquiry Decree 1966 No. 41 took effect as a law enacted by the National Assembly pursuant to the provisions of section 315 of the Constitution of the Federal Republic of Nigeria, 1999.

2.            Whether or not sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12 of the Tribunals of Inquiry Decree No. 41 (or any of them) are constitutional and valid or contravene section 35 or 36  of the Constitution of the Federal Republic of Nigeria,  1999.

The Court of Appeal (Oguntade, Nzeako and Galadima, JJ.CA) answered the questions (per Oguntade, JCA) thus:-

“Answer to Question 1

Cap. 447 was promulgated as Decree No. 41 of 1966 by the Federal Military Government in 1966. Being an enactment of the Federal Military Government, it took effect on 28-5-99 as an existing law pursuant to section 315 of the 1999 Constitution. As such existing law, it needed to be brought into conformity with the 1999 Constitution of Nigeria by the appropriate authority, who is Mr. President. Appropriate authority has failed and or neglected to make textual modification in the said Cap. 447  as would bring it in conformity with the 1999 Constitution as provided under section 315 of the same Constitution. Only the President, as the appropriate authority can make such textual modification. Even if this court is aware of what needs to be done, the best efforts of this court would amount to no more than merely speculation. In any case, the court is without the jurisdiction to exercise a power reserved in the Constitution for only Mr. President as the appropriate authority.

Question No. 2

Arising from my observations above in the answer to question 1, the inevitable conclusion to be arrived at in relation to question No. 2 is that sections 5(c), 10, 11(1)(b), 11(3), 11(4) and 12 (altogether collectively referred to as the compulsive powers under Cap. 447) are unconstitutional, invalid and contravene section 35 or 36 of the Constitution of the Federal Republic of Nigeria, 1999. [Note: Section 5(d) was inadvertently omitted].

It only remains for me to add that the invalidity and or unconstitutionality of sections 5(c), 10, 11(1)(b), 11(3), 11(4) and 12 of Cap. 447 arises from the fact that as the said provisions were made in excess of the legislative competence of the National Assembly, they could not be relied upon as a basis to supplant or infract the rights enshrined in section 35 or 36 of the 1999 Constitution of the Federal Republic of Nigeria.”

Dissatisfied with the decision of the Court of Appeal in respect of the reference questions, the appellant appealed to the Supreme Court. The Supreme Court in deciding the appeal considered sections 35, 36 and 315 of the 1999 Consitution and sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12  of the Tribunals of Inquiry Act,  1966.

“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law -

(a)        in execution of the sentence or order of a court in

respect of a criminal offence of which he has been found guilty:

36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.

315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be -

(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

(2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.”

The relevant sections of the Tribunals of Inquiry Act provide thus:

“5.     Subject to the provisions of this Act, a tribunal shall have and may exercise any of the following powers, that is to say -

(c)           the power to summon any person in Nigeria to attend any meeting of the tribunal to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions. Summons issued under this paragraph may be in Form A in the Schedule to the Act, and shall be served by the police or by such person as the members may direct,

(d)          the power to issue a warrant to compel the attendance of any person who, after having been summoned to attend fails or refuses or neglects to do so and does not excuse such failure or refusal or neglect to the satisfaction of the tribunal, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure or refusal or neglect to obey the summons, and also to fine such person a sum not exceeding twenty naira, such fine to be recoverable in the same manner as a fine imposed by a magistrate’s

court. A warrant issued under this paragraph may be in Form B in the Schedule to this Act and may be executed by any member of the Police Force and by any person authorised by an area or customary court, or local government authority to effect arrest.

10. Any person who, after service on him of a summons to attend as a witness or to produce a book, document or any other thing and, notwithstanding any duty of secrecy however imposed, fails or refuses or neglects to do so or to answer any question put to him by or with the concurrence of the tribunal shall be guilty of an offence, and liable on summary conviction to a fine of two hundred naira or to imprisonment for a term of six months:

Provided that no person shall be bound to incriminate himself and every witness shall, in respect of any evidence written by him for or given by him before the members, be entitled to the same privilege to which he would have been entitled if giving evidence before a court of justice.

11(1) Any person who commits an act of contempt, whether the act is or is not contempt in the presence of the members sitting in an enquiry, shall be liable -

(b) on the order of the tribunal to a fine of twenty naira, such fine being  recoverable in the same manner as if it were imposed by a magistrate.

11(3) Where an act of contempt is alleged to have been committed but not in the presence of the members sitting in an enquiry, the tribunal may by summons in Form C or to the like effect in the Schedule to the Act require the offender to appear before the tribunal, at a time and place specified in the summons, to show cause why he should not be judged to have committed an act of contempt and be dealt with accordingly. Summonses issued under this subsection shall be served by the police or by such other person as the tribunal may direct.

11(4) If any person who has been summoned in accordance with subsection (3) of this section fails or refuses or neglects to attend at the time and place specified in the summons, the tribunal may issue a warrant in Form D or to like effect in the Schedule to this Act to compel the attendance of such person to pay all costs which may have been occasioned in compelling his attendance or by his failure or refusal or neglect to obey the summons, and may in addition fine such person a sum of twenty naira, such costs and fine to be recoverable in the same manner as if they were imposed by a magistrate’s court.

12(1) For the purposes of section 11 of this Act, the following shall be deemed to be an act of contempt -

(a)           any act of disrespect and any insult or threat offered to a tribunal or any member thereof while sitting in a tribunal;

(b)          any act of disrespect and any insult or threat offered to a member at any other time and place on account of his proceedings in his capacity as a member;

(c)           any publication calculated to prejudice an inquiry or any proceedings therein.

(2) No punishment for contempt shall be imposed by a tribunal until the members shall have heard the offender in his defence.”