Alhaji Musa Alubankudi V. Attorney-general of the Federation & Anor (2002)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

In the Federal High Court, Lagos, the plaintiff/appellant by originating summons raised two questions for determination to wit:

“1. Whether by virtue of section 9 of the Special Tribunal (Miscellaneous Offences) Act, Cap. 410, Laws of the Federation, section 20 of Recovery of Public Property (Special Military Tribunals) Act, Cap 389, Laws of the Federation, 1990, the provisions of the Tribunals (Certain Consequential Amendments e.t.c) Decree 62 of 1999, the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the effect of the non-confirmation of the:

(i) Decision of the Miscellaneous Offences Tribunal holden at Lagos, which decision was delivered by the said tribunal on the 12th day of September, 1997 in charge No. MOT/L/95: Federal Republic of Nigeria, v. I. Alhaji Musa Alubankudi 2. Alhaja Gbemisola Alubankudi Saliu and 3. Alhaja Ronke Alubankudi; and

(ii) The decision of the Special Appeals Tribunal holden at Lagos on 3rd November, 1998, in appeal No. SAT/WO/394/97: Alhaji Musa Alubankudi v. Federal Republic of Nigeria, as the two decisions affect the plaintiff was that the decisions are a nullity.”

In its judgment of 26th May, 2000 of the said Federal High Court presided by Belgore, C.J., the originating summons was dismissed.

The facts of this matter are substantially agreed by the parties. The plaintiff/appellant with his two wives were arraigned before the defunct Miscellaneous Offences Tribunal on two charges of dealing in heroin, a narcotic drug. The appellant was convicted and sentenced to 7 years and further ordered to forfeit to the Federal Government of Nigeria all his properties; the wives were however acquitted and discharged on all the counts. The matter went on appeal to the now defunct Special Appeals Tribunal. And again the appeal against the conviction and sentence was dismissed and the forfeiture of the appellant’s properties confirmed by the said tribunal. The appellant had since served his term. It is after serving his term that the appellant instituted this action contesting the regularity of the decisions of the Miscellaneous Offences Tribunal and the Special Appeal Tribunal against their non-confirmation by the confirming authority of the sentence passed on him as required by law. Hence the two questions raised in the originating summons for determination by the trial court.

Dissatisfied with the decision of the Federal High Court on the matter, the plaintiff/appellant has now appealed against the same and had raised four grounds of appeal by the amended notice of appeal filed on 9th July, 2001. The parties have filed and exchanged their respective briefs of argument. The appellant has raised the following four issues as arising for determination:

Issue One

“From ground one, the issue that arises is: whether the lower court was right in holding that the case of Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292 is not applicable to this case.

Issue Two

From ground two of the grounds of appeal, the issue that arises is whether the lower court was right in holding that the only part of the decisions of the Miscellaneous Offences Tribunal and the Special Appeals Tribunal that required confirmation was the sentence.

Issue Three

The issue that arises from ground three of the notice of appeal is whether the lower court was right in holding that the decision in question no longer requires confirmation due to the promulgation of Decree 62 of 1999.

Issue Four

Arising from ground four of the notice of appeal is the question whether the decision of the Special Appeals Tribunal is not a nullity due to the failure or neglect of the Special Appeal Tribunal to consider the jurisdictional issues raised before it.”

The respondents adopted the issues for determination as identified by the appellant subject to the objection taken against ground four as presently set forth in this judgment. In their brief firstly the respondents took objection to ground four which was added after leave to file and argue additional grounds of appeal as well as leave to raise and argue a new point as formulated in ground four of the amended notice of appeal. I think the stage has to be set by articulating the appellant’s case first including ground four of the grounds of appeal and so align the preliminary objection in proper perspective. In that wise, I go on to deal with the appellant’s case on issue four.

On the pre that it involved questions of jurisdiction the appellant in his brief had dealt with issue four distilled from ground four of the grounds of appeal first. Under this head the appellant challenged the decision of the Special Appeals Tribunal for failing to pronounce on an issue raised before it as to whether the National Drug Law Enforcement Agency had the power to initiate and prosecute this matter for itself or on behalf of the Attorney-General of the Federation against the appellant. It was his contention that where the proper person required under the law to institute a criminal charge had not done so the court had no jurisdiction to embark on the trial. The prosecutor here came into being on 29th December 1989 and so, he argued could not in any capacity prosecute the instant offence committed between June and September, 1989. See Squadron Leader O. T Onyeukwu v. State (2000) 12 NWLR (Pt.681) 256 at 264-265; Okafor v. State (1976) 5 S.C. 13 at 16 per Idigbe J.S.C., State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 56; Attorney General v. Ryan (1980) AC 718 at 730.

The appellant again relying on section 33(8) of the 1999 Constitution of Nigeria and Article 7 Rule 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria had challenged the decision of the Special Appeal Tribunal for on having set aside the conviction on count 2 to have gone ahead to convict for conspiracy pursuant to sections 3(15)(a)(iii) and 10(6) of the Special Tribunal Miscellaneous Offences Act, Cap. 410, Laws of the Federation of Nigeria, 1990 – an offence he contended was not in existence as of the time of the commission of the offence. See Aoko v. Fagbemi (1961) ANLR 410 at 420. Lord Chief Udensi Ifegwu v. Federal Republic of Nigeria and Anor. (2001) 3 NWLR (Pt. 729) 103.

On what should be the attitude of this court to the foregoing scenario the appellant had opined that it was incumbent on this Court to order a hearing de novo – the said decisions being a nullity: See Shanu v. Afribank Nigeria Plc (2000) 13 NWLR (Pt. 684) 392 at 402; Onwe v. Oke (2001) 3 NWLR (Pt.700) 406 at 422 and Olorunfemi v. Asho (1999) 1NWLR (Pt.585) 1. He further opined that this matter along with other appeals ought therefore to be pending at the Special Appeal Tribunal as at the time the Tribunal became defunct. And that by virtue of Decree 62 of 1999 the appeals (including the instant one) so pending at the defunct Special Appeals Tribunal now are to be heard by this court de novo.

The appellant arguing in the alternative to issue four dealt with above reverted to the rest of the issues seriatim. On issue one, that is, on whether the court below was right in holding that the case of Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292 was not applicable to the matter, the appellant submitted that the case decided that where the validity of an act depended on a condition subsequent and if the condition subsequent did not happen then the act would be said to be invalid.

Issue two raised the question of non-confirmation of the instant decisions of the Miscellaneous Offences Tribunal and Special Appeal Tribunal by the Armed Forces Ruling Council and Provisional Ruling Council. Relying on sections 1(1)(2) and 9(2) of the Special Tribunal (Miscellaneous) Offences Act, Cap. 410 and section 20 of the Recovery of Public Property (Special Military Tribunals) Act, Cap. 389, Laws of the Federation, 1990 the appellant – contended that the conviction and sentence by both tribunals were not to be so treated until confirmed by the confirming authority and that the court below was wrong to hold that it was only sentence that required confirmation.

Issue three raised the question of non-confirmation on the aforesaid decisions of the tribunal after the enactment of Decree No. 62 of 1992 i.e. Tribunals (Certain Consequential Amendments Etc) Decree 1999. The appellant also submitted that if the court below had applied the correct principles in construing section 2(4) of Decree No. 62 of 1999 it would not have come to the conclusion it reached to the effect that confirmation had become otiose. Upon these reasons the appellant urged the court to allow the appeal and to make the orders as prayed.

The respondents’ objection as intimated earlier touched on ground four, that is that this court lacked the jurisdiction to hear and determine ground four and the issue raised therefrom and since the objection was on the jurisdiction of this court to hear and determine the issue that they were not precluded from raising it at this stage. See Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1, (2000) 6 SCNI 190 at 193 at 206 per Kalgo, I.S.C. and Achike, J.S.C. at page 203 and also Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 at 560. The respondents’ basic point of objection was that the Special Appeals Tribunal designated in the brief as a tribunal, was a court of co-ordinate jurisdiction with this court, and so a court of superior jurisdiction to the Federal High Court whose decision was appealed from to this court. Meaning that the appellant could not raise the issue of the nullity of the decision of the defunct Special Appeals Tribunal before the Federal High Court, an inferior court to the Special Appeals Tribunal nor in this court. Further that this court should not have granted the leave to raise and argue ground four in view of the foregoing, as the remedy open to the appellant was to appeal to Supreme Court from the decision of Special Appeals Tribunal. Ground four he submitted was therefore an abuse of process. On the other arm of the appellant’s objection that is, as to the power of the National Drug Law Enforcement Agency to initiate and prosecute the instant action the respondents contended that the issues could not stand as there was no appeal to this court from the decision of the Special Appeals Tribunal and besides it could not be the subject of further litigation since Decree No. 62 of 1999 had abolished the requirement of confirmation of sentences passed by such tribunals. They then prayed that ground four be struck out in limine and the arguments thereupon discountenanced.

In the alternative to the above submissions on ground four, the respondents had argued that the Special Appeals Tribunal did address all the issues including the jurisdictional ones raised before it from the judgment of the instant Miscellaneous Offences Tribunal and that it pronounced on the ones germane to decide the appeal. And it was not obliged to pronounce on every issue taken before it, See Anyaduba v. N.R.T.C. (1992) 5 NWLR (Pt. 243) 535 at 541 ratio 13, Okonji v. Njokanma (1991) 7 NWLR (pt. 202) 131. The respondents submitted that there was no basis to ask for a hearing of the matter by this court, a matter already determined by the Special Appeals Tribunal.

Arguing issue one the respondents re-asserted that the decision in Governor of Oyo State v. Folayan (supra) was inappropriate and inapplicable to the instant matter as the instant tribunals were judicial ones as against advisory tribunals as contemplated in the cited case that is to say notwithstanding that their sentences required confirmation. They referred to the proviso to section 9(2) of the Special Tribunal (Miscellaneous Offences) Act, Cap. 410, Laws of the Federation of Nigeria, 1990 and section 20(2) of the Recovery of Public Property (Special Military Tribunals) Act, Cap. 389, Laws of the Federation of Nigeria, 1990 to support their contention that only sentences were to be confirmed and not conviction and sentence as was being urged by the appellant.

On issue two that is, that only sentences required confirmation, in this regard the respondent again referred to the enactments mentioned above to show, if I may repeat, that all that was required was confirmation of the sentence and not conviction and sentence. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, 2 SNQR Vol.2 (pt. 11) 1264 at 1268.

On issue three the respondents argued that since the coming into effect of Decree 62 of 1999 confirmation of sentences was no longer a requirement and so the conviction and sentence of the appellant remained valid. The court was urged to dismiss the appeal. The appellant responded to the preliminary objection in his reply brief. Firstly, he opposed raising the point by objection in this court and said it was belated and that the only remedy now open to the respondents, not taken, was to appeal against the order to raise fresh point as encompassed in ground four which raised questions of law only. See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt. 55) 179; Oguma Associated Companies (Nig.) Ltd. v. IBWA (1988) 1 NWLR (Pt. 73) 658 at 672; D.PM.S. v. Larmie (2000) 5 NWLR (Pt. 655) 138 at 151 -152. Secondly, it was submitted that the appellant was not in a position to canvass the instant objection as to whether the Federal High Court could hear the instant summons as it was not made a complaint nor a ground of appeal and so no issue was raised in such terms as to sustain the objection which therefore went to no issue. See Jimba v. A.P (Nig.) Ltd. (1998) 13 NWLR (Pt. 581) 273 at 280-281 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159 at 172.

Thirdly, and in further answer to the substantive objection by the respondents, the appellant had maintained that the said tribunals not being superior courts recognised as such in the Constitution were but inferior courts or tribunals vis-a-vis the Federal High Court who ordinarily would exercise supervisory jurisdiction by means of prerogative orders over the said tribunals. See: Gillick v. West Norfolk and Wisbech Area Health Authority (1986) AC 112 at 170. The submission that because this court has now to exercise the jurisdiction of the Special Appeal Tribunal as per Decree No. 62 of 1999 could not without more make the said tribunal and this court, courts of coordinate jurisdiction. The inferiority of the said tribunals to the trial court and this court was further pronounced upon by their decisions requiring confirmation to make them binding and authoritative. The appellant then veered into the issue of confirmation of conviction and sentence of the said tribunals thus re-opening his arguments on that issue already adequately canvassed in the main brief. Order 6 rule 5 of the Court of Appeal Rules, 1981 (as amended) has provided that a reply brief should be confined to addressing fresh issues raised in the respondent’s brief as a reply brief is not to introduce fresh points of argument or expound on issues already canvassed in the appellants brief. All the foregoing represent in a nutshell the respective positions of the cases of the parties in the matter.

I think that before going into resolving firstly the issues raised in the preliminary objection it is important to further add that beside the instant originating summons filed by the appellant, the respondents filed a counter-affidavit to facts contained in the originating summons. The appellant furthermore filed an affidavit to which the judgments of the Miscellaneous Offences of 12/9/97 and Special Appeal Tribunal of 3/11/98 were exhibited as exhibits MA1 and MA2 respectively.

The proper starting point in considering this matter has to be with the respondents’ objection to ground four. It is now settled that the Court will allow a point of law on a preliminary objection where the point so taken will be decisive of the proceedings. In my view there can be no doubt that it is competent for the respondents to canvass the instant objection against ground four at this stage as it would be decisive of the fate of ground four. Ground four with its particulars as set forth in the amended notice of appeal read as follows:

“The decision of the Special Tribunal is a nullity as it wrongfully declined jurisdiction when it held as follows:

“… Briefs of arguments have been filed on both sides. The appellant has raised 15 issues for determination in his briefs of arguments including the issue relating to the appeal against sentence imposed on him.

In our view, the most significant of these issues is issue 4 thereof which reads:

“Whether it is necessary for the prosecution to prove and establish by expert evidence that heroin allegedly carried by PW2 and PW3 and whether it was right for the learned trial Judge to take judicial notice and rely on Geneva Convention and exhibits 5, 6, 7 & 8 to hold that Diaramphene is/was the same as heroin.”

Particulars

(i) A tribunal or a court of law does not have the jurisdiction to refuse to hear issues properly before it.

(ii) The tribunal ought to have heard the other 14 issues validly raised before it much more so that one of the other issues challenges the authority of the N.D.L.E.A. to institute the charge thereby the jurisdiction of both the Miscellaneous Offences Tribunal and the Special Appeals Tribunal to hear the matter was challenged.

(iii) The refusal to hear the other issues validly raised led to the denial affair hearing to the appellant and there was miscarriage of justice.”

Needless observing that the appellant had earlier on by leave of this court been granted leave to raise and argue fresh issue arising from ground four. The implication of this is that this court was satisfied it had before it all the facts bearing on the fresh issue as would have been the case if the contention had arisen before the court below. I have above set out the materials put before this court for that application.

The appellant in expatiation had in his brief raised two pronged contention underground four namely that the Drug Law Enforcement Agency lacked the competency to initiate and prosecute the matter before the two said tribunals and that the offence of conspiracy upon which the appellant was convicted by the Special Appeal Tribunal was not an offence known to law as of date the offence was committed. The issue raised against ground four by the respondents was hinged on want of jurisdiction of this court to hear and determine the issue distilled from the said ground and for ease of reference it is reproduced thus:

“… whether the decision of the Special Appeals Tribunal is not a nullity due to the failure or neglect of the Special Appeals Tribunal to consider the jurisdictional issues raised before it.”

The appellant at page 4 para. 1.9 of his brief while conceding that the respondents had raised the issue of jurisdiction of the Federal High Court to entertain the matter had contested the manner and method of the objection as not being available to the appellant in an appellate proceedings as the instant one on the ground that the issues should have related to issues distilled from grounds of appeal and that as no ground of appeal had raised the issue of whether the Federal High Court could hear the appellant’s originating summons and so no issue of whether the Federal High Court could hear the matter could have been formulated in the appeal and thus the appellant’s argument not having arisen from any issue for determination in the appeal went to no issue. It seems to me with respect, that the appellant had missed the vital point of the purport of the respondents’ objection. The respondents were not contesting the leave to raise and argue fresh points of law but were contesting that ground four as it stood that this court had no jurisdiction to entertain it. There can be no gain repeating the rule of law that arguments canvassed which do not arise from an issue for determination go to no issue. That proposition of the law is well settled.

The respondents’ objection to ground four was founded upon want of jurisdiction and it could rightly be taken at any stage of the proceedings. See Fadiora & Anor. v. Gbadebo & Anor. (1978) NSCC (Vol. II) 121 per Idigbe J.S.C.

The crux of the issue which has arisen for consideration from the objection is whether ground four which has no bearing whatsoever on the judgment appealed from could be canvassed on appeal. The appellant having opted to bring the instant action by way of originating summons upon which he raised two substantive questions for determination by the trial court and the two questions have been set forth in detail above. The court below duly pronounced on the two questions but it never adverted to the issues raised in ground four as they were not laid before it (i.e. the court). Having examined ground four closely, no doubt it would tantamount to arguing on appeal a totally different case from the case both parties contested before the court below. Such inconsistency is abhorred by the Court in an appeal as the instant one as the parties are confined to their case as pleaded in the trial court. See Jumbo v. Bryanko International Ltd. (1995) 6 NWLR (Pt. 403) 545 at 555 – 556. Besides, it is settled that once the specific questions in an originating summons for determination as the instant ones set forth in the instant originating summons have been answered by the court that is, have become exhausted or settled any fresh questions like the ones encompassed by ground four must be done by a fresh originating summons. See: Re: Pattman’s Will Trusts (1965) 1 WLR 728 or (1965) 2 AER 191. Note that it was open to the appellant properly to raise by amendment such further questions that were appropriate to the type of reliefs he was seeking by means of ground four. Not having done so, it was wrong indeed fundamentally irregular to seek to introduce the fresh question by raising ground four. So that a court as the court below as well as this court would lack the competence to hear and determine a matter raised completely outside the questions posed to the court in the originating summons for determination. The appellant I must emphasize should have sought an amendment to the instant originating summons to include such further questions raised in ground four before the court below.

The other aspect of the objection taken by the appellant relate to the relative status of the said tribunals as against the trial court and this court. Although, the respondents did strongly canvass the arguments as to the status of the Miscellaneous Offences Tribunal vis-a-vis the Federal High Court and the Special Appeals Tribunal as against this court of co-ordinate jurisdiction and more significantly that appeal should lie from Special Appeals Tribunal to the Supreme Court. I say with respect that all the foregoing are totally misconceived as such submissions should go further to cite the law or legal authority backing the submissions. This issue is one of law and none was cited to the court. Ordinarily, the two said tribunals are inferior courts or tribunals to the High Court and this court which are of statutory or constitutional creation and fall within the hierarchy of the courts created by the Constitution. This conclusion has not detracted one bit from my view point and reservations on ground four as articulated above. I find merit in the objection and uphold the same accordingly strike out ground four. The issue distilled from ground four must therefore collapse also the arguments in that regard are hereby discountenanced. I now go on to deal with the remaining three issues raised for determination by the appellant. As for the remaining issues I intend to take all of them that is issues 1, 2 and 3 together – as the underlying issue in all of them relate to the effect of non-confirmation of the sentence passed on the appellant. Firstly, the appellant took issue with the trial court’s perception of the case of Governor of Oyo State v. Folayan (supra) as not being applicable to the instant case. From the facts of the cited case and the instant one there can be no basis for urging that the cited case is applicable and on all fours with this case. Apart from the fact that the cited case concerned Aboderin Commission of Enquiry set up into chieftaincy titles of Akesin of Ora and the Asaoni of Ora, the Supreme Court in its judgment did not mince words as to the status of the commission, it said:

“Be it noted however, that as the Aboderin Commission of Enquiry from its terms of reference is merely advisory, its decisions and recommendations will have no binding effect until accepted and confirmed by the authority that set it up, and which authority in the meantime is not precluded from expressing its views thereon pending implementation.”

In contrast the Miscellaneous Offences Tribunal and the Special Appeals Tribunal were uncontrovertibly judicial tribunals created by section 1 of the Special Tribunal (Miscellaneous Offences) Act, Cap. 410, Laws of the Federation, 1990 and section 15(1) of the Recovery of Public Property (Special Military Tribunals) Decree NO.3 of 1984. These tribunals were not advisory as they were judicial tribunals although their sentences were subject to confirmation by the Armed Forces Ruling Council and the Provisional Ruling Council. It would be taking the question of inferiority of the said tribunals too far to equate them to an ad hoc Aboderin Commission of Enquiry set up under the enabling powers given to the Governor of Oyo State, to carry out an investigation into the said chieftaincy matter. It seems to me that the appellant in urging that the case of Governor of Oyo State v. Folayan (supra) applied to this matter that it was made without due advertence to the facts and circumstances of the instant matter; miles apart from the situation in the cited case.

I therefore answer issue one in the negative.

One other crucial feature of the decision of the said tribunals is that it is only the sentence as against the conviction handed down by them that was to be confirmed. In this regard I agree with the court below that the conviction remained valid and was not subject to confirmation.

Section 9(2) Special Tribunal (Miscellaneous Offences) Act Cap 410; has made it clear that the sentence and not the conviction required to be confirmed. The provisions are thus:

“S.9(2) A sentence of a Tribunal or Special Appeals Tribunal shall not be treated as a sentence of the tribunal or Appeal Tribunal until confirmed.

Provided that this subsection shall not affect the keeping of the accused person in custody pending confirmation.”

The proviso to section 9(2) notwithstanding that the sentence had to be confirmed allowed that the accused person as the appellant here to be kept in custody until confirmation of the sentence. The convictions and sentence in the instant matter remained unconfirmed when the Decree No. 62 of 1999 came into effect and section 1 of the same abolished the requirement of confirmation. Meanwhile the appellant has served his term.

Section 1 states thus:

“The enactments specified in the first column of parts 1 and 11 of the schedule to this Decree are amended to the extent set out in the second column of those parts of that schedule.”

Again, I agree with the view expressed by the court below that the decision by the said tribunals remains valid up to the promulgation of Decree No. 62 of 1999 even though not confirmed and that since section 1 of Decree No. 62 of 1999 has done away with the necessity for confirming sentences; that requirement no longer holds. And that on 13/8/99 when this action commenced confirmation of the appellant’s sentence was no longer required. And I also so hold.

In sum, therefore, I find no merit in the appeal and it should be dismissed. I dismiss it. And I affirm the decision of the court below.

Other Citations: 2002)LCN/1160(CA)