Chief Gani Fawehinmi & Ors V. General Ibrahim Babangida (Rtd.) & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

On 31 October, 2001, the Court of Appeal, Lagos Division, gave answers to questions set out in a reference made to it by the Federal High Court, Lagos under section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999. The questions are as follows:

1. Whether or not the Tribunals 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 answers given by the Court of Appeal provoked the two appeals with which I shall deal in this judgment. Before I come to those answers, I state some relevant facts of the case. 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.8 of 1999 (later amended by a Statutory Instrument No. 13 of 1999) which states that it was made by Mr. 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, (the Act) and of “all other powers” enabling him in that behalf. The Commission was composed of eight members under the Chairmanship of the Honourable Justice Chukwudifu Oputa, JSC (Rtd.) who was made the 1st defendant to the two actions brought to contest the validity of the Act and certain actions taken by the Commission. The appellant in one of the appeals – Chief Gani Fawehinmi – was, upon application by him, joined as the 3rd defendant in the actions.

The Commission was given terms of reference which were that it shall-

“(a) ascertain or establish the causes, nature and extent of human rights violations or abuses with particular reference to all known or suspected cases of mysterious deaths and assassinations or attempted assassinations committed in Nigeria between the 1st day of January 1984 and the 28th of May, 1999;

(b) Identify the person or persons, authorities, institutions or organizations which may be held accountable for such mysterious deaths, assassinations or attempted assassinations or other violations or abuses of human rights and determine the motives of the violations or abuses, the victims and circumstances thereof and the effect on such victims or the society generally of the atrocities;

(c) Determine whether such abuses or violations were the product of deliberate State policy or the policy of any of its organs or institutions or whether they arose from abuses by State officials of their office or whether they were the acts of any political organisations, liberation movements or other groups or individuals;

(d) Recommend measures which may be taken whether judicial, administrative, legislative or institutional to redress the injustices of the past and prevent or forestall future violations or abuses of human rights;

(e) Make any other recommendations which are, in the opinion of the Judicial Commission, in the public interest and are necessitated by the evidence.”

In the course of the inquiry, the Commission issued summons for service on persons to testify as witnesses, among whom were the plaintiffs. The plaintiffs resisted being compelled to attend as witnesses.

They proceeded to court instead. In the originating summons by one of them – Brig. General A.K. Togun (Rtd) – he stated his claim as follows:-

(i) A declaration that the Tribunals 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 defendant 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 Inquiries 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.”

The Federal High Court sitting in Lagos, presided over by Belgore, C. J., made the reference in question to the Court of Appeal. In the leading judgment delivered by Oguntade, JCA with which Obadina and Nzeako, JJCA concurred, the following answers were given:

“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 the plaintiffs. Only the President, as the appropriate authority can make such ual 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.

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.” (Note: Section 5(d) was inadvertently omitted.)

In his appeal against the judgment, Chief Gani Fawehinmi (hereinafter referred to as the 3rd defendant/appellant) has set down three issues for determination as follows:

“(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 the1999 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.)

I may as well say here that the appellants in the second appeal, namely, the 1st and 2nd defendants/appellants, jointly raised two issues for determination thus:

1. 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 15 of the 1999 Constitution of the Federal Republic of Nigeria (Note: section 5(d) was inadvertently omitted.)
2. 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 unconstitutional, invalid and contravene sections 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999″

Sections 35, 36 and 315 of the 1999 Constitution and sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12 of the Act are the relevant provisions to be considered in these appeals. The constitutional provisions read as follows:

“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 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 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 this 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 arrests.

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 inquiry, 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 inquiry, the tribunal may by summons in Form C or to the like effect in the Schedule to this 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 tribunal until the member shall have heard the offender in his defence.

Similar provisions were considered by both the Federal Supreme Court: see Doherty v. Balewa (1961) 2 SCNLR 256, and the Privy Council: see Balewa v. Doherty (1963) 2 SCNLR 155. In that case, the sections which empowered the Commission of Inquiry to impose a sentence of fine or imprisonment were declared void being in contravention of section 20(1) of the 1960 Constitution which forbade a deprivation of personal liberty by any order save one made by a court of justice. A similar situation has arisen in the present case as regards violation of sections 35(1) (a) and 36(1) of the 1999 Constitution.

Mr. Oyetibo, learned counsel for the 3rd defendant/appellant, contends with particular reference to the answer to question No.1 given by the court below, as already quoted in this judgment, that it was not only a rigmarole but also a contradiction in itself, and was wrong. He submits that the Court of Appeal did not answer the questions referred to it. It did not say, according to him, whether or not the Act took effect as an Act passed by the National Assembly but that from an erroneous and inadequate approach went to what could be no part of the answer, namely, that Mr. President had failed and/or neglected to make modification in the of the Act. He contends that the court should simply have answered the questions and had no jurisdiction to rehear the case, citing by analogy Bamaiyi v. Attorney-General of The Federation (2001) 12 NWLR (Pt. 727) 468. He says while the first two sentences of the first answer were direct enough, the remaining part of the answer went astray and introduced a confusion to the earlier part. His further submission as contained in the brief of argument is that

“No question was referred to the Court of Appeal as to who was the appropriate authority in respect of Decree No. 41 of 1966 and whether or not the appropriate authority has made necessary ual modification to the said Cap. 447 as would bring it in conformity with the 1999 Constitution as provided in section 315 of the Constitution. It must be noted that the question whether or not ual modification has been made to a particular law by the appropriate authority is one of fact or at best mixed law and fact. A party who wishes to prove such a fact would necessarily have to tender the relevant gazette in proof of that fact or the court would, by virtue of section 74(1)(b) of the Evidence Act, have to take judicial notice of (the) same.”

Learned counsel for the plaintiffs/respondents, Chief Uche, has argued that it was not expected and it would not have been enough that the Court of Appeal should give an answer to question No. 1 and stop short of answering whether or not the Act is also “a law with respect to any matter on which the National Assembly is empowered by the Constitution to make laws.” He then concluded that “the Court of Appeal was correcting deciding that in the absence of necessary modification or ual amendment of the Tribunals of Inquiry Decree by the President, the Decree did not take effect as a law enacted by the National Assembly pursuant to the provisions of section 315 of the 1999 Constitution.”

The learned Director of Public Prosecutions, Mr. Duru, who is counsel for the 1st and 2nd defendants/appellants, put up as his main argument that the court has no jurisdiction to question the validity of the Act which was as promulgated by the Federal Military Government as a Decree i.e. Decree No. 41 of 1966, citing such cases as Uwaifo v.Attorney-General, Bendel State(1982) 7 SC 124; Attorney-General, Imo State v. Attorney-General, Rivers State (1983) 2 SCNLR 108; (1983) 8 SC 108; Din V. Attorney-General, Federation (1988) 4 NWLR (Pt. 87) 147; Attorney-General, Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; (1989) ANLR (Reprint) 504. I think I should dispose of this misconceived submission off-hand which Chief Uche adequately replied to on behalf of the 1st and 2nd defendants/appellants. The cases cited do not fit into the facts of the present case. Section 6(6)(d) of the 1979 Constitution [then relevant and applicable but repeated still as S.6(6)(d) of the 1999 Constitution] was meant to protect the dejure authority and the integrity of the competence which the Military Government assumed to make laws for the country between 15 January, 1966 and 30 September, 1979 from being questioned in court. It has nothing to do with whether such laws, if still existing, cannot be considered by the court as to their consistency with the 1979 Constitution or any other law and therefore as to their validity. That was provided under section 274(3) of that Constitution thus:

“274(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say

(a) Any other existing law;

(b) A Law of a House of Assembly;

(c) An Act of the National Assembly; or (d) any provision of this Constitution.”

This provision is repeated in section 315(3) of the 1999 Constitution. Chief Uche cited Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 173 and Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446 at 475-476 to support his argument that the court’s jurisdiction is accordingly preserved in that regard although, upon a perusal, I was unable to see the relevance of the former case cited. Chief Uche in further argument of the respondents’ case submits that the Court of Appeal was expected to give a decision to resolve the questions referred to it and not simply to restrict itself to a yes or no format in answering them as Mr. Oyetibo had argued. He also says that for the Act to be valid as an existing law, it must qualify as one which the National Assembly is capable of enacting under the 1999 Constitution, citing Governor of Kaduna State v. Kagoma (1982) 3 NCLR 1092; Attorney-General, Benue State v. Ogwu (1983) 4 NCLR 213. His contention is that the Act is not an enactment within the competence of the National Assembly because there is no item concerning tribunal of inquiry in either the Exclusive or concurrent Legislative List of the 1999 Constitution, and he relies on Attorney-General, Abia State v. Attorney-General, Federation (2002) 6 NWLR (Pt. 763) 263 at 457-458. It is important to examine this contention closely because of its fundamental consequences to these appeals, and I certainly intend to do so. As to the constitutionality of some of the sections of the Act, he submits that those which confer compulsive powers on the tribunal of inquiry are inconsistent with sections 35 and 36 of the 1999 Constitution being an interference with the personal liberty of persons and therefore invalid, relying on Balewa v. Doherty (1963) 2 SCNLR 155.

It seems to me that if the status of the Act is not carefully examined from the background of the legislative powers conferred on the National Assembly to make laws by the 1999 Constitution, any process of reasoning in an attempt to answer the questions referred to the Court of Appeal is likely to be faulty. The court below failed to realise this, and as I shall show in the course of this judgment, it faltered in its answers to those questions. This occurred, I believe, because it took a fundamentally wrong approach in the first place and also, as partially pointed out by Mr. Oyetibo, with whom I agree, it introduced the element of failure of the appropriate authority to make ual modification to the Act when that did not necessarily arise from the reference in question No. 1. The answer to question No.2, or more correctly the reasoning which led to the answer, was not quite satisfactory either. This was due to inadequate understanding or improper application of the decision in Balewa v. Doherty (1963) 1 WLR 949; (1963) 2 SCNLR 155.

Before dealing with some other submissions made before this court, it is pertinent to consider how it is the Constitution which has had the effect of restricting the powers of the Federal Government to set up a tribunal of inquiry in this country. I consider that as a useful preface to the proper decision of these appeals. In order to discuss the constitutional position in this regard, it is unnecessary to go beyond the 1960 Constitution. Under that Constitution, the powers of Parliament to make laws were given by section 64. The Schedule was divided into Parts I, II and III. Part 1 contained 44 items placed on the Exclusive Legislative List; Part II contained the Concurrent Legislative List of 28 Items; while part III had 2 paragraphs under the heading “Interpretation” which was common to both Parts I and II and dealt with incidental or supplementary matters. It was both item 44 under the Exclusive Legislative List and Item 28 under the Concurrent Legislative List which were concerned with incidental or supplementary matter. Item 44, which was the last item on the Exclusive List, was stated thus:

“44. Any matter that is incidental or supplementary –

(a) To Whom It May Concern: any matter referred to elsewhere in this list; or

(b) To the discharge by the Government of the Federation or any officer, court or authority of the Federation of any function conferred by this Constitution.”

Paragraph 1 of Part III (Interpretation) was in the following terms:

“1. In this Schedule references to incidental and supplementary matters include, without prejudice to their generality –

(a) Offences;

(b) The jurisdiction, powers, practice and procedure of courts of law;

(c) The compulsory acquisition and tenure of land;

(d) The establishment and regulation of tribunals of enquiry.”

As can be seen, the power to set up tribunals of inquiry was given under the 1960 Constitution both on the Exclusive List and Concurrent List. It was, however, not made a subject item but an incidental or supplementary matter on both Lists. It was in that state of the Constitution that the Commissions and Tribunals of Inquiry Act, 1961 was enacted. That Act purported to confer a general power on the Prime Minister to authorise the establishment of tribunals of inquiry into any matter within Federal competence. When a tribunal of inquiry was set up by the Prime Minister to inquire into the affairs of the National Bank of Nigeria, it led to litigation which ended in the Privy Council in the case reported as Balewa v. Doherty (1963) 1 WLR 949; (1963) 2 SCNLR 15 5.

The said Commissions and Tribunals of Inquiry Act, 1961 under which the Prime Minister acted, was enacted purportedly by virtue of Item 44 falling under incidental or supplementary matter of the Exclusive List of the 1960 Constitution. The Privy Council, upholding the Federal Supreme Court on the point, observed that the object of the Act was to confer a blanket power on the Prime Minister to direct inquiries into any matters within Federal competence but said that this was improper because the legislative power conferred by Item 44 was not wide enough to authorise inquiries into subjects about which Parliament might have the competence to legislate, unless there was actual legislation in existence or a function of the Federal Government actually being discharged under the law relevant to and connected with the inquiry. Lord Devlin who delivered the judgment of the Privy Council observed further:

“It would indeed be quite natural for the Constitution to give to Parliament the power to establish a tribunal of inquiry into any matter about which it could legislate. But the simple and obvious way of doing that would be to add to the end of each legislative list an item such as ‘the establishment and regulation of tribunals of inquiry into any of the above matters. If there were an item in that form, a general Act authorising the establishment of tribunals of inquiry into any matter on the list might well be valid.” See (1963) 1 WLR at p. 960; (1963) 2 SCNLR at p. 168.

It was this observation, it would appear, which led to the insertion in Item 39 on the Exclusive Legislative List and Item 25 on the concurrent legislative List of the 1963 Constitution, a subject item which read: “Tribunals of inquiry with respect to all or any of the matters mentioned elsewhere in this list.” It was therefore, without dispute that under that Constitution, Parliament could enact a general Act to empower the appropriate authority to institute a commission of inquiry into any matter mentioned in both the Exclusive and Concurrent Lists. As a result of that constitutional provision, the Tribunals of Inquiry Act, 1966 (now in question) which was promulgated by the Federal Military Government as Decree No. 41 of 1966 within its very wide powers, could validly have been enacted as an Act by a National Assembly operating under the 1963 Constitution, although, as I shall show later, only to the extent the very terms of the constitutional provision allowed.

The provision for the establishment and regulation of tribunals of inquiry made in the 1960 Constitution created limited scope for the institution of tribunals because it was a power given to Parliament to enact any relevant law only as an incidental or supplementary matter. That was the cause of the difficulty the Prime Minister faced in not being able, in pursuance of the Act passed under such constitutional provision, to institute a commission of inquiry to investigate the activities of the National Bank of Nigeria, even though banking was an item under the Exclusive List. That difficulty could not be surmounted notwithstanding the wide powers section 3(1) of the 1961 Act purported to confer on the Prime Minister as follows:

“3(1) The Prime Minister may, whenever he shall deem it desirable, issue a Commission appointing one or more Commissioners, or any quorum of them that may therein be mentioned, to hold a Commission of Inquiry into any matter or thing within or affecting the general welfare of the Federal Territory of Lagos, or into any matter or thing within Federal competence anywhere within the Federation, in respect of which in his opinion, an inquiry would be for the public welfare, or into the conduct of any chief or the management of any department of the public service, The Prime Minister may also appoint a secretary to the Commission who shall perform such duties, as the Commissioners shall prescribe.

There was no dispute as to the power under the Act relating to the Federal territory of Lagos which was then the sole responsibility of the Federal Government which, if I may say, was exercised under its residual powers over Lagos. The problematic issue was whether the incidental or supplementary powers in Item 44 were wide enough to enable Parliament to enact a legislation for the whole Federation in terms of the Act, including the giving of compulsive powers to the Commissioners to take evidence on oath, to compel the attendance of witnesses and the production of documents. The initial approach of the Privy Council to that problem was stated by Lord Devlin when he observed inter alia thus:

“Since banking is a subject within Item 43 of the Exclusive List, it must be beyond doubt that Parliament has power to provide for an inquiry in some form into banking, But their Lordships do not have to decide whether if Parliament had authorised directly an inquiry on the same terms as the Prime Minister did on July 21, 1961, by Government Notice No. 1446, the legislation would have been good or bad… But their Lordships are not considering any specific legislation. They are concerned with a statute which confers upon the appellant, the Prime Minister of the Federation, wide powers to set up commissions or tribunals of inquiry generally. It is upon the validity of that statute that the appellant’s action in ordering an inquiry into the affairs of the Bank of Nigeria(sic) depends. That is why their Lordships have not been content simply to note that banking is a Federal subject but have had to study the general law-making powers which the Constitution gives to Parliament.”

See Balewa v. Doherty (1963) 1WLR at p. 949; (1961) 2 SCNLR at p.256.

The Privy Council in that case in the answers they gave to the questions finally decided –

(1) That the Act of 1961 was not within the competence of the legislative power of the Federal Parliament in so far as section 8(a), (b), (c) and (d) purported to have effect in relation to matters and things within Federal competence anywhere within the Federation. [Note: The section cited is similar to section 5(a), (b), (c) and (d) of the Act of 1966 in question in these appeals].

(2) That section 3(4) of the said Act was void. [Note: The section is similar to section 1(1) of the Act of 1966].

(3) That section 8(c) was valid in so far as it purported to have effect in relation to matters or things within or affecting the general welfare of the Federal Territory of Lagos. Sections 8(d), 15(a) and 18(1)(b) were declared void to the extent that they empowered the Commissioners to impose a sentence of fine or imprisonment [Note: The power given in section 15(a) of the 1961 Act which empowered the tribunal to impose a penalty on a person for failing to give evidence was removed from section 10 of the 1966 Act. Section 18(1)(b) of the 1961 Act is similar to section 11(1)(b) of the 1966 Act].

In essence, the Act of 1961 was held valid in so far as it authorized tribunals or commissions of inquiry with compulsive powers (other than power to impose a sentence of fine or imprisonment) in relation to any matter or thing within or affecting the general welfare of the Federal Territory of Lagos only. But it was held not to be within the competence of the legislative power of the Federal Parliament to enact that Act with compulsive powers to Commissioners to compel the attendance of witnesses so as to testify and or produce documents in relation to any matter within federal competence not restricted to the Federal Territory of Lagos. It goes without saying that the Tribunals of inquiry Act, 1966 cannot fare any better under the 1999 Constitution.

But as I have said, under the 1963 Constitution the said Act would be valid subject, of course, to any aspect of it that may be regarded unconstitutional. The power of the President to constitute a tribunal of inquiry is provided in section 1(1) of the Act, and it reads:

“1(1) The President (hereinafter in this Act referred to as the ‘the proper authority’ may, whenever he deems it desirable, by instrument under his hand (hereafter in this Act referred to as ‘the instrument’) constitute one or more persons (hereafter in this Act referred to as ‘member’ or ‘members’) a tribunal to inquire into any matter or thing or into the conduct or affairs of any person in respect of which in his opinion all inquiry would before the public welfare; and the proper authority may by the same instrument or by an order appoint a secretary to the tribunal who shall perform such duties as the members shall prescribe.”(Emphasis mine)

I draw attention to the emphasized part of section 1(1). When this is related to Item 39 of the Exclusive Legislative List and Item 25 of the Concurrent Legislative List of that Constitution which provided explicitly for “Tribunals of Inquiry with respect to all or any of the matters mentioned elsewhere in this list”, it would be seen that even under the 1963 Constitution, the powers conferred on the President by the said section 1(1) would be regarded too wide as it relates to the Federation as a whole. The consequence of that would be that the President could be prevented from setting up a tribunal of inquiry to look into any matter outside the then Federal Territory of Lagos [now to be taken as the Federal Capital Territory, Abuja] not permitted under either the Exclusive or Concurrent Legislative List no matter whether, he was of the opinion that it was for the “public welfare.” From the foregoing, it would appear plain that it is always a constitutional issue whether a statute which authorises the setting up of a tribunal of inquiry is valid or not, and the extent of its invalidity. First, there is the question whether there is a constitutional provision giving power to enact such a statute. Second, whether the statute has been enacted strictly within the purview of the constitutional provision conferring that power. Third, whether the tribunal of inquiry has been given a mandate within the contemplation of both the Constitution and the statute. If the power to enact the statute does not exist constitutionally, of course that is the end of the matter. The statute will have no validity. If the power exists but it has been exceeded because the statute is not in conformity with the Constitution, the statute is invalid except to the extent it can be made to conform. These are founded on basic constitutional principles.

The power given to Parliament to make laws in regard to Tribunals of inquiry as reflected in the Legislative Lists contained in the relevant provisions of the Schedule to the 1963 constitution [Item 39 of the Exclusive Legislative List and Item 25 of the concurrent Legislative List] was, for whatever reason, denied the National Assembly in both the 1979 and 1999 Constitutions of the Federal Republic of Nigeria. Without such constitutional provisions, no valid law can be made, or can exist, standing on its own and of a general nature, to apply throughout the Federation of Nigeria on the strength of which the President may set up a tribunal or commission of inquiry. This is because no law not specifically authorised or backed up in our Constitution can be lawfully passed for the Federation of Nigeria by the Federal legislature. It is the limits set under relevant provisions of the Constitution that define and determine the frontiers of the laws that can be enacted. That is the hallmark of constitutional democratic governance which is seen as a reflection of the power granted by the people to meet their aspirations, and none else. In essence, that means that the National Assembly cannot enact a general Law for the establishment of tribunals of inquiry for, and applicable in, the Federation of Nigeria. The power to enact such a Law has become a residual matter for the States in respect of which the Houses of Assembly can legislate for their respective States by virtue of section 4(7)(a) of the 1999 Constitution which provides that:

“4(7). The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say –

(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”

As the Federal Capital Territory (FCT) Abuja is under the jurisdiction of the Federal Government, the constitution of tribunals of inquiry for the territory has accordingly become a residual matter over which the National Assembly can legislate as if the FCT Abuja were a State by virtue of sections 4(4)(b) and 299 of the 1999 Constitution, the provisions of which are as follows:

“4(4). In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say –

(b) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

299. The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly.

(a) All the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja;

(b) All the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and

(c) The provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.”

I shall later discuss the effect of this on the Tribunals of Inquiry Act, 1966 and how it will lead to the resolution of the issues canvassed in these appeals and the questions referred to the court.

Mr. Oyetibo on behalf of the 3rd defendant/appellant has made a number of further submissions which I ought to briefly deal with. First, he cautions against reliance on the decision in Balewa v. Doherty (supra). It would appear the reason for this, from his argument, is that the case was decided on the basis of the legislative power of the Federal Parliament as it stood under the 1960 Constitution with particular reference to the Items contained in the Exclusive Legislative List; whereas the Exclusive Legislative List under the 1999 Constitution is more expansive than that of the 1960 Constitution. I am afraid, with due respect to learned counsel, that there is no substance in this argument which obviously seems to miss the constitutional highlight in the Balewa v. Doherty decision both in the Federal Supreme Court and the Privy Council. What is relevant is the extent of the power, if any, conferred under the Constitution on the National Assembly (or Parliament) to enable it to enact a general law for the establishment and regulation of tribunals of inquiry This will not necessarily depend on the length or expansiveness of the Legislative Lists. Admittedly, whether the Lists are long or short, nothing prevents the legislature from enacting a law or laws directed at enabling or authorising the holding of an inquiry or inquiries into a particular Item or Items on the Lists. But in order to have a general law for that purpose, there ought to be an Item in itself on the Exclusive List or Concurrent List or both. That was not quite available in the 1960 Constitution because what was provided in the Lists was under incidental or supplementary matter. This inadequacy was corrected in the 1963 Constitution. I believe I have already given full consideration to this earlier in this judgment. I am satisfied that Balewa’s case is a correct guide which this court is bound to follow.

The second submission of learned counsel for the 3rd defendant/appellant which I wish to discuss is that the Commission in question was properly set up under “Human Rights” and, according to him, this is one of the matters on which the National Assembly is empowered to legislate. He drew attention to the power of the National Assembly under section 4 subsection (2) of the 1999 Constitution to make laws and then referred in particular to subsection 4(b) which provides that in addition the National Assembly shall have power to legislate on “any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.” Relying thereafter on Item 67 of the Exclusive Legislative List which provides for “Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution”, the argument continued that one of such matters is “Human Rights” for which the Constitution makes provision in section 12(2). I think it will make for better understanding to reproduce section 12(1) and (2) as follows:

“12.(1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.”

Learned counsel argued that the African Charter on Human and Peoples’ Rights is a treaty which this country has enacted into law now in Cap. 10, Laws of the Federation of Nigeria, 1990. He relied on Articles 1 and 62 of the Charter which, inter alia, require member/party States to adopt legislative or other measures to give effect to the rights and freedoms recognized and guaranteed in the Charter, and to submit a report every two years on this. All this argument was intended to support the position taken by the 3rd defendant/appellant that the Commission being in essence an aspect and in furtherance of human rights obligation of Nigeria, it was constitutionally empowered under the Tribunals of Inquiry Act, 1966, or under “other measures to give effect to the rights and freedoms” enshrined in the Charter.

I do not think the argument has carried the matter any further. It has not been shown that the 1966 Act is wholly valid under the 1999 Constitution in the sense that the National Assembly can validly enact it as it is to operate throughout the Federation of Nigeria. Unless that was shown, the Commission cannot be said to be constitutionally empowered for the assignment it was given purportedly under that Act. Even assuming that “Human Rights” was an Item or a matter on which the National Assembly can legislate for the Federation, the position would still remain that there would need to be an Act enacted by the National Assembly to authorise an inquiry into Human Rights of the nature the Commission in question was meant to accomplish. But if, as learned counsel seemed to have placed emphasis in his oral submission, the Commission could as well be set up through “other measures” to give effect to human rights, I can only say that that might be a possibility except that such a Commission, without an appropriate legislation backing it, would have no inquisitorial powers but would be a powerless body set up by ordinary ministerial act to seek and receive information from anyone willing to offer it: see Balewa v. Doherty (1963) 2 SCNLR at p. 166.

The other submission by learned counsel, Mr. Oyetibo, is that the Commission was endowed with compulsive powers to obtain evidence from witnesses because “Evidence” is among the Items on which the National Assembly has legislative powers and that “sections 10, 11 and 12 of the 1966 Act are matters incidental to matters of ‘evidence’ and therefore are covered by section 4(2) and item 68 of the Exclusive Legislative List of the Constitution.” I do not find this contention tenable. It is true that “Evidence” is under the Exclusive Legislative List (Item 23) so that it is only the National Assembly that the Constitution gives authority to look into all matters concerning “evidence” as a subject and to enact a law establishing the nature of evidence that can apply throughout the Federation in any competent court of law bound by the strict rule of evidence, and be able to amend it as it considers fit. Such evidence is applicable and enforceable in such court or other body which, under the Constitution may be empowered to impose an obligation on any person to testify before it. But it must first be shown that a body (such as a tribunal of inquiry wishing to exercise authority to receive evidence) which wishes to compel evidence to be given before it was set up under a law that was validly enacted and which law entitles it to do so.

The submission of Mr. Oyetibo, as I understand it, was that because under the 1999 Constitution, the National Assembly can legislate on “Evidence” as a subject under item 23, there can be no complaint about the compulsive powers contained in the 1966 Act for a tribunal of inquiry to call for evidence. This was how he put it in the appellants brief of argument inter alia ..

“It has been shown earlier that by virtue of section 4(2) and Item 23 of the Exclusive Legislative List of the 1999 Constitution the National Assembly has power to legislate on ‘evidence’. It has also been shown that by virtue of section 1(1) of the 1966 Act the President has power to constitute a Commission of Inquiry into matters referred to in the Exclusive Legislative List with respect to which National Assembly could legislate. It will now be shown that the compulsive powers complained of in this case come within the purview of ‘Evidence’ with respect to which the National Assembly is authorised to make laws for the Federation. It is respectfully submitted that the compulsive powers contained in section 5(1)(a), (b), (c), (d) and (g) of the 1966 Act are strictly speaking matters relating to ‘evidence’ and are therefore covered by section 4(2) and item 23 of the Exclusive Legislative List of the 1999 Constitution whilst the provisions contained in sections 10, 11 and 12 of the Act are matters incidental to matters of ‘evidence’ and therefore are covered by section 4(2) and item 68 of the Exclusive Legislative List of the Constitution.”

In view of what I have said above, this submission is completely flawed as a red herring. It is not in dispute that the National Assembly has power to legislate on ‘evidence’ as a subject. That is not in issue here, nor is the law of Evidence. What is in dispute in the said section 5 of the 1966 Act is whether the Commission is properly empowered there under to compel witnesses to testify and produce documents. That has nothing to do with the power of the National Assembly to legislate on ‘evidence’. It has to do with whether the National Assembly has power at all under the 1999 Constitution to enact a law of the type of the 1966 Act which confers certain compulsive powers on commissions of inquiry. To resolve the dispute depends principally to what extent the said Act is valid vis-a-vis the 1999 Constitution. It is that which must decide the power Mr. President can exercise under it and the jurisdiction of the Commission both operationally in regard to the subject matter and territorially in regard to areas outside the Federal Capital Territory, Abuja.

When it is remembered that the 1999 Constitution has made no provision for tribunals of inquiry as did the 1963 Constitution in Item 39 of the Exclusive List and Item 25 of the Concurrent List, it follows that, to repeat myself on the point, the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals of Inquiry Act 1966 is now a residual power under the 1999 Constitution belonging to the States. However, in regard to the Federal Capital Territory Abuja, the Power resides in the National Assembly. The failure of the Court of Appeal to appreciate the absence of that constitutional provision from the 1999 Constitution and to reach these conclusions, led it to give answers to the questions referred to it by the Federal High Court in a manner not entirely satisfactory, in particular by introducing the question of Mr. President not having brought the Act in conformity with the Constitution. Having regard to what I have discussed above, the issues which have arisen in the two appeals will now have to be resolved. I start with the issues raised by the 3rd defendant/appellant for determination.

Issue No. 1

The Court of Appeal went beyond the answer required for the first question referred to it by the Federal High Court. I would give the answer to the question from what I have considered above as follows:

The Tribunals of Inquiry Act, 1966 promulgated by the Federal Military Government for the entire Federation under the enabling laws is an existing law pursuant to section 315 of the 1999 Constitution and is deemed to be an Act enacted by the National Assembly for the Federal Capital Territory Abuja only and a Law enacted by a State House of Assembly under the residual powers of both legislatures. This is because the National Assembly has no power under the 1999 – Constitution to enact a general law on tribunals of inquiry in the form of the said Act to have effect throughout the Federation of Nigeria.

Issue No.2

Having regard to the above-stated answer, this issue has been rendered unnecessary.

Issue No.3

The Court of Appeal was right that sections 5(d), 11(1)(b), 11(4) and 12(2) of the Act are unconstitutional and invalid in so far as they purport to empower a tribunal of inquiry to impose a sentence of fine or imprisonment in contravention of sections 35(1)(a) and 36(1) of the 1999 Constitution. But the court was wrong to declare sections 5(c), 10 and 11(3) of the Act unconstitutional and invalid.

The two issues for determination raised by the 1st and 2nd defendant/appellants being substantially the same as the issues answered above are accordingly so resolved.

In effect therefore the two appeals can only be said to have succeeded in part. In the event, I make no order for costs. Each party shall bear its own costs.

---

SC.360/2001