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Federal Republic of Nigeria vs. Ifegwu

THE FEDERAL REPUBLIC OF NIGERIA

THE ATTORNEY-GENERAL OF THE

FEDERATION AND MINISTER OF JUSTICE

V

LORD CHIEF UDENSI IFEGWU

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided and dissented )

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

EMMANUEL OLAYINKA AYOOLA, JSC

NIKI TOBI, JSC

DAHIRU MUSDAPHER, JSC

DENNIS ONYEJIFE EDOZIE, JSC

SC. 115/2002

FRIDAY, 23RD MAY, 2003

ACTION - Form of action - Whether affects or inhibits enforcement and protection of fundamental rights under chapter IV of the Constitution

APPEAL - Issues formulated in the nature of an appeal against the judgment of Special Appeal Tribunal - When not based on any ground of appeal -  Effect [Kutigi, JSC dissenting ]

CONSTITUTIONAL LAW - Case stated or reference to appellate court made under section 259(2), 1999 Constitution - Conditions which must exist before reference can be made

CONSTITUTIONAL LAW - Constitution, 1979, section 42 and Fundamental Rights (Enforcement Procedure) Rules - Construction and application of

CONSTITUTIONAL LAW - Constitution, 1999 section 295(2) - Whether confers power on Federal High Court to transfer a suit to Court of Appeal for hearing and determination [Kutigi, JSC dissenting]

CONSTITUTIONAL LAW - Ex post facto clause similar to section 33(8) of the 1979 Constitution - Disregard of by a tribunal or court Constitutional remedy available to a person so affected

CONSTITUTIONAL LAW - Fundamental right - Contravention of by state agency or judicial tribunal - Exercise of special jurisdiction of High Court in respect of - Whether thereby becomes one of judicial review or general supervisory power

CONSTITUTIONAL LAW- - Fundamental rights contained in chapter IV of the Constitution - When contravened by Failed Banks Tribunal Enforcement of - Whether section 1(5) of Failed Banks Decree No. 18  of 1994 which denies supervisory jurisdiction or powers of judicial review in regard to Failed Banks Tribunal proceedings affects that right

CONSTITUTIONAL LAW - Human rights of citizens - Question whether there has been a contravention of - Whether can at all times be answered as a jurisdictional question

CONSTITUTIONAL LAW - Reference made under section 259(2), 1999 Constitution - Whether mandatory to hear all parties to the action before making order for reference - Where only one party heard Whether violates fair hearing right of other parties to the proceedings or vitiates the reference - Effect

CONSTITUTIONAL LAW - Reference of questions to appellate court Constitution, 1999, section 295(2) - Interpretation and application of

CONSTITUTIONAL LAW - Retroactive penal laws - Prohibition of by section 33(8), 1979 Constitution - Effect of on and need to safeguard personal liberty of citizens

CONSTITUTIONAL LAW - Tribunals - Jurisdiction of - Right of party to raise same at any stage of the proceedings - Whether such right exercisable through a separate action in High Court two years after conclusion of Tribunal’s proceedings [Kutigi, JSC dissenting]

CONSTITUTIONAL LAW- Constitution, 1979 section 33(8) and (12) Defences available thereunder - When raised and dealt with finally by the Tribunal - Whether Federal High Court and Court of Appeal have jurisdiction in the matter [Kutigi, JSC dissenting]

CONSTITUTIONAL LAW- Constitution, 1979 section 33(8) and (12) Whether clear or ambiguous or subject to more than one interpretation - Issues based thereon - Whether referable [Kutigi, JSC dissenting]

CONSTITUTIONAL LAW- Constitution, 1999 as amended, section 33(8) Rule that no person can be punished for an act which was not a crime when it was done - Application of

CONSTITUTIONAL LAW- Fundamental rights - Enforcement and protection of - Whether form of action adopted inhibits

CONSTITUTIONAL LAW- Fundamental rights - Enforcement of - Need for the reliefs sought to be principal, not ancillary or incidental to substantive claim

CONSTITUTIONAL LAW- Reference or case stated - Issues raised by appellants in respect of - When do not relate to the interpretation and application of the Constitution - Whether referable [Kutigi, JSC dissenting]

COURT - Federal High Court - Jurisdiction of to entertain action involving claims for declaratory reliefs and the order to set aside the conviction and sentence of a person by Failed Banks Tribunal - Whether depends on its being so empowered or on the cause of action

COURT - Fundamental right - Contravention of by state agency or judicial tribunal - Exercise of special jurisdiction of High Court in respect of - Whether thereby becomes one of judicial review or general supervisory power

COURT - High Court - Jurisdiction of - Exercise of when invoked for redress for contravention of fundamental human rights provision - Whether special as opposed to general supervisory jurisdiction

COURT - High Court - Jurisdiction of to entertain application for declaration brought under section 46 of the Constitution, 1999 Concept of - Difference from writ of certiorari

COURT - Reference or case stated - Party who succeeded in securing reference abandoning reference questions and formulating new ones in the Court of Appeal - Effect [Kutigi, JSC dissenting]

COURT - Special Appeal Tribunal - Decision of - When final - Whether may be indirectly opened through a separate legal action under the guise of ‘enforcement of fundamental right’ [Kutigi, JSC dissenting]

COURT - Special Appeal Tribunal - Decision of - Whether forecloses the enforcement of a constitutionally entrenched right

COURT - Transfer of a suit from Federal High Court to Court of Appeal Whether power conferred by section 295(2), Constitution 1999 to do so [Kutigi, JSC dissenting]

COURT - Tribunals - Jurisdiction of - Right of party to raise same at any stage of the proceedings - Whether such right exercisable through a separate action in High Court two years after conclusion of Tribunal’s proceedings [Kutigi, JSC dissenting]

CRIMINAL LAW AND PROCEDURE - ‘Fraudulently granting credit facilities’ - Whether an offence known to Nigerian law under section 19(1)(a) of Decree No. 18 of 1994 - Conviction based thereon Whether saved by application of ejusdem generis or noscitur a sociis rule

CRIMINAL LAW AND PROCEDURE - Failed Banks Decree No. 25 of 1994 , section 19(1)(a - e) - Whether has retrospective effect

ESTOPPEL - Act of tribunal or court conducted without jurisdiction - Nullity of - Whether estoppel may revive or resuscitate such an act

ESTOPPEL - Res judicata or issue estoppel - Whether can be based on decision reached by a court which lacked jurisdiction

INTERPRETATION OF STATUTE - Ejusdem generis or noscitur a sociis rule - Meaning and application of

INTERPRETATION OF STATUTE - Ouster clause in a statute - Whether protects a nullity

INTERPRETATION OF STATUTE - Failed Banks Decree No. 25 of 1994, section 19 and Constitution, 1979 as amended, section 33(8) Whether harmonise on retrospectivity rule

JUDGMENT AND ORDERS - Decision of Special Appeal Tribunal -

Whether forecloses the enforcement of a constitutionally entrenched right

JUDGMENT AND ORDERS - Special Appeal Tribunal - Decision of - When final - Whether may be indirectly opened through a separate legal action under the guise of ‘enforcement of fundamental right’ [Kutigi, JSC dissenting]

JURISDICTION - Federal High Court - Jurisdiction of in respect of enforcement of fundamental rights - Scope of - Section 251(1), Constitution, 1999

JURISDICTION - Federal High Court - Jurisdiction of in respect of enforcement of fundamental rights - Need for the grievance to be principal, not ancillary, reliefs

JURISDICTION - Federal High Court - Jurisdiction of to entertain action involving claims for declaratory reliefs and the order to set aside the conviction and sentence of a person by Failed Banks Tribunal -

Whether depends on its being so empowered or on the cause of action

JURISDICTION - Fundamental right - Contravention of by state agency or judicial tribunal - Exercise of special jurisdiction of High Court in respect of - Whether thereby becomes one of judicial review or general supervisory power

JURISDICTION - High Court - Jurisdiction it exercises when involved for redress for contravention of fundamental human rights provision Whether special as opposed to general supervisory jurisdiction

JURISDICTION - High Court - Jurisdiction of to entertain application for declaration brought under section 46 of the Constitution, 1999 Concept of - Difference from writ of certiorari

JURISDICTION - Human rights of citizens - Question whether there has been a contravention of - Whether can at all times be answered as a jurisdictional question

JURISDICTION - Jurisdictional issue - Whether foreclosed by statutory provision declaring a Tribunal’s decision final -  Validity of an independent action based on fundamental right arising therefrom

JURISDICTION - Proceedings conducted without jurisdiction - Effect Whether can be waived as to validate such proceedings

JURISDICTION - Tribunals - Jurisdiction of - Right of party to raise same at any stage of the proceedings - Whether such right exercisable through a separate action in High Court two years after conclusion of Tribunal’s proceedings [Kutigi, JSC dissenting]

PRACTICE AND PROCEDURE - Fundamental rights - Enforcement of -

Need for the reliefs sought to be principal, not ancillary or incidental to substantive claim

PRACTICE AND PROCEDURE - Proceedings conducted without jurisdiction - Effect - Whether can be waived as to validate such proceedings

PRACTICE AND PROCEDURE - Reference or case stated - Party who succeeded in securing reference abandoning reference questions and formulating new ones in the Court of Appeal - Effect [Kutigi, JSC dissenting]

STATUTE - Failed Banks Decree No. 25 of 1994, section 19(1)(a - e) -

Whether has retrospective effect

STATUTE - Ouster clause in a statute - Whether protects a nullity

STATUTE - Retrospective law - Whether Failed Banks Decree No. 25 of 1994  is

STATUTE - Statutory provision declaring decision of Tribunal final Whether forecloses jurisdictional issue being in a separate and independent civil action

WORDS AND PHRASES - ‘Ejusdem generis or noscitur a sociis rule’ -

Meaning and application of

Issues:

1.            Were the learned Justices of the Court of Appeal right in not striking out this case stated when ex facie the trial Federal High Court lacked jurisdiction to make the reference?

2.            Whether the Court of Appeal was right in entertaining the reference when the condition precedent to the exercise of jurisdiction to refer by way of case stated by the Federal High Court had to the finding of the Court of Appeal not been fully established.

3.            Was the Court of Appeal right in holding that the provisions of section 33(8) and (12) of the 1979  Constitution took precedence over the Failed Bank and BOFID Decrees in the face of the Supreme Court restatement of the hierarchy of our laws during a military interregnum?

4.            Was  the Court of Appeal right in not dismissing the case stated when ex facie it is statute-barred and also caught by issue estoppel?

5.            Was the Court of Appeal right in its application of the Supreme Court decision in 7- Up Bottling Co. Ltd. vs. Abiola & Sons Ltd. (1995) 3 NWLR (Pt. 383) 257 to the facts of this case and in its justification of the hearing ex parte of the motion on notice praying for the reference?

6.            Whether the misuse of the word ‘fraudulently’ in the description of the offence for which the respondent was convicted was material enough to vitiate the conviction when the respondent was not deceived or misled by the description.

Facts:

The respondent was a director of Alpha Merchant Bank Plc from 2 June 1988 till sometime in 1993. Alpha Merchant Bank Plc’s licence was revoked by the Central Bank of Nigeria in 1994. The respondent had maintained accounts with the bank through his three companies, to wit: Dubic Industries Ltd., D. U. Chemicals Ltd. and African Pulp and Paper Mills Ltd. He was alleged to have “over-utilised foreign exchange for which he did not provide equivalent naira cover for the amount”. The respondent and five others were eventually arraigned and tried before the Failed Banks Tribunal, Lagos. There were ten counts altogether. The respondent was involved in counts 1 and 10. Count 1 was in respect of “conspiracy to commit a felony, to wit, fraudulently granting credit facilities to Dubic Industries Ltd. without lawful authority, in contravention of rules of the said Alpha Merchant Bank Plc and the regulatory authorities (CBN/NDIC”. Count 2 states that the respondent “was connected with the granting of credit facilities totalling US$ 2,962,062.89 to Dubic Industries Ltd. without declaring his personal interest in the said facility to the then Board of Directors”. Count 1 was said to contravene section 3(1)(b)(c) and (d) of Failed Banks (Recovery of Debts) and Financial Malpractices Decree No. 18  of 1994 as amended and count 2 was said to be a violation of section 18(3)  and section 18(9) of this said Decree.

The respondent was convicted on the two counts and sentenced accordingly. He appealed to the Special Appeal Tribunal which on 29 May 1997  allowed the appeal on sentence by substituting for each of counts  1 and 10, N100,000 fine or 2 years in prison. By reason of section 5 of Decree No. 18 of 1994, the decision of the Special Appeal Tribunal “shall be final”. Consequently that decision, stood until the respondent proceeded to file originating summons in June, 1999 complaining, as it were, that the two Tribunals which heard the case acted in breach of his fundamental rights guaranteed under section 33(8) of the 1979 Constitution as amended. Three reliefs were sought upon the determination of two questions.

Upon the respondent’s request, the trial court referred the two questions to the Court of Appeal. The appellants did not participate in the application for reference since they were absent and unrepresented.

In the Court of Appeal, respondent raised four issues and the appellants raised three issues, aside from the two questions referred. The record, however, showed that in moving its application for reference in the trial court, respondent sought for “transfer of the suit to the Court of Appeal by way of case stated”. Defences based on section 33(8) of the 1979 Constitution as amended were also reflected on record to have been raised before the Tribunals and decided upon.

The questions were indirectly answered negatively by the Court of Appeal. Upon further appeal to the Supreme Court, the questions were further, by a majority decision, answered negatively.

The Supreme Court considered the following laws:

Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994:

Section 1(5):

“Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, as amended, or any enactment to the contrary, the supervisory jurisdiction or power of judicial review of a High Court shall not extend to any matter or proceeding before the Tribunal duly constituted under this Decree.” Section 5(1) and (2):

“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property ( Special Military Tribunal) Decree 1984, as amended, in accordance with the provisions of that Decree.

(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the

Tribunal shall be final.”

Section 19:

19(1) Any director, manager, officer or employee of a bank who

(a)           knowingly, recklessly, negligently, wilfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person

(i)            without adequate security or collateral, contrary to the accepted practice or the bank’s regulations, or

(ii)          with no security or collateral where such security or collateral is normally required in accordance with the bank’s regulations, or

(iii)        with a defective security or collateral, or

(iv)        without perfecting, through his negligence or otherwise, a security or collateral obtained; or

(b)          grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility which is above his limit as laid down by law or any regulatory authority or the bank’s regulations; or

(c)           grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility to any person in contravention of any law for the time being in force, any regulation, circular, or procedure as laid down, from time to time, by the regulatory authorities or by the bank; or

(d)          receives or participates in sharing, for personal gratification, any money, profit, property or pecuniary benefit towards or after the procurement of a loan, an advance, a guarantee or any other credit facility from any person whether or not that person is a customer of the bank; or

(e)           recklessly grants or approves a loan or an interest waiver where the borrower is known to have the ability to repay the loan and interest,

is guilty of an offence under this decree.”

Constitution of the Federal Republic of Nigeria, 1979 as amended:

Section 13:

“[T]he principle on which the clause is based - the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties - is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the Due Process Clause of the Fifth

Amendment.”

Section 33(8):

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.” Section 33(12):

33(12) “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection 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.” [emphasis are mine]

Constitution of the Federal Republic of Nigeria, 1999:

Section 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 manner as to secure

its independence and impartiality.” Section 46(1) and (2):

“46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application

may be entitled under this Chapter.” Section 251(1):

*              connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender,

bills of exchange, letters of credit, promissory notes and other fiscal matters: see section 251(d).

*              subject to the said provision, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies: see section 251(1)(q).

Section 295(2):

“295(2) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so request, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”

Constitution (Suspension and Modification) Decree No. 1 of 1984: Section 42(1):

“(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application

may be entitled under this chapter.” Criminal Procedure Act:

Section 166:

“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any time of the case material unless the accused was infact misled by such error

or omission.” Section 167:

“167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been

read over to the accused and not later.”  Section 168:

“168. No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court.” Section 516:

“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.”