Attorney-general of the Federation V. Chief (Dr.) Zebolum Meschech Abule (2004)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the ruling of the High Court of Lagos State delivered on the 14th day of December, 2000 by Hon. Justice T.A.O. Oyekan-Abdulahi in suit No. M724/99 in which he granted the prayers of the respondent in an application for enforcement of fundamental human rights.

The respondent was tried and convicted by the Kano Zone of the Failed Banks Tribunal, of the offences of alleged failure to declare his interests in the loans granted by Crystal Bank of Africa Ltd. to companies in which the appellant was either Chairman or Director and failure to seek Central Bank of Nigeria approval whilst a director of the said Crystal Bank of Africa Ltd. contrary to section 18(3) of Banks and other Financial Institution Decree No. 25 of 1991 and punishable under section 18(9) of the said Decree. The respondent was not satisfied with that conviction and appealed to the then Special Appeal Tribunal sitting in Lagos which also decided against the respondent.

The respondent then applied to the High Court of Lagos State for the enforcement of his fundamental rights which application was granted in a considered ruling now subject matter of this appeal.

In arguing the appeal learned counsel for the appellant, C.I.J., Okpoko, Esq. of the Chambers of the Attorney-General of the Federation, in a brief of argument filed on 27/7/04 and which was adopted in argument of the appeal on 25/9/04 identified an issue for the determination of the appeal. The issue, which was also adopted in substance by learned counsel for the respondent in the respondent’s brief by Prof. Adesanya, SAN deemed filed on 20/9/04 is as follows:

“Whether the learned trial Judge was right in law when she assumed the jurisdiction to hear and entertain the respondent’s suit as constituted and conceived having due regard to the obvious provisions of sections 1(5) and 24(3) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 and section 230(1)(s) of 1979 Constitution as amended by Decree No. 107 of 1993?”

Learned counsel then submitted that by the combined effect of the provisions of sections 1(15), 24(3) of Decree No. 18 of 1994 and section 230(1)(s) of the 1979 constitution as amended by Decree No. 107 of 1993, the High Court of Lagos State lacks the jurisdiction to hear and determine the respondent’s matter. That where the provisions of the statute or constitution are clear and unambiguous, the literal rule of construction be applied to the words used relying on the case of lntemational Banks for West Africa Ltd. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633.

That section 24(3) of Decree No. 18 of 1994 forbids any inquiry into the exercise of the power of the Attorney-General by a private legal practitioner on his behalf under section 24(2)(b) of Decree No. 18 of 1994. That the said section 24(3) reinforces the unfettered powers of the Attorney-General under the common law or provisions of section 160 of the 1979 Constitution as amended. For this, learned counsel referred the court to the case of State v. Ilori (1983) All NLR 84 at 95-96; (1983) 1 SCNLR 94.

That as at the time the cause of action arose in the year 1996 and 1997, the High Court of Lagos State lacked jurisdiction to hear and/or entertain any suit seeking declaratory orders against the appellant’s exercise of his administrative powers relying on section 230(1)(s) of the 1979 Constitution as amended, Onyenucheya v. Min. Adm. of Imo State (1997) 1NWLR (Pt. 482) 429 at 452; A/i v. CBN (1997) 4 NWLR (Pt. 498) 192; University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706; NEPA v. Edegbero (2002) 18 NWLR (Pt.798) page 79 that the attitude of the court to ouster clauses is to decline jurisdiction relying on A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, at 580-581.

Learned counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned counsel for the respondent submitted that since the proceedings at the lower court were instituted to enforce the fundamental rights of the respondent the ouster clause in section 1(5) of Decree No. 18 of 1994 is not applicable relying on the case of F.R.N v. Ifegwu (2003) 15 NWLR (Pt. 842) 113.

That the finality conferred on the Attorney-General of the Federation by virtue of section 24(3) of Decree No. 18 of 1994 does not apply where there is an allegation that the decision or action complained of is null and void for being unconstitutional, as in the present case relying at pages 199-200 per Ayoola, J.S.C., F.R.N v. Ifegwu (supra); Attorney-General for Bendel State v. Attorney-General of the Federation (1982) 3 NCLR 1; N.P.A. v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82.

On section 230(1)(5) of the 1979 Constitution, learned counsel for the respondent submitted that it does not apply to the facts of this case particularly as the application before the lower court is for enforcement of fundamental rights and that both the State and Federal High Courts have concurrent jurisdiction in the matter relying on Jack v. University of Agriculture Makurdi (2004) 5 NWLR (Pt. 865) 208 at 229.

Finally, learned counsel urged the court to resolve the issue against the appellant and dismiss the appeal.