Chief Gani Fawehinmi & Ors Vs. General Ibrahim Babangida (Rtd- 2003) LLJR-SC

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

LAWGLOBAL HUB Lead Judgment Report

UWAIFO JSC.

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:

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.

Whether not sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12 of the Tribunals of Inquiry Decree 1966 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 organisations 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 organizations, 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 summonses 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 Inquires 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 and or neglected to make textual modification in the said Cap.447 as would bring it in conformity with the 1999 constitution as provided under Section 315 of the same Constitution. Only the President, as the appropriate authority can make such textual modification. Even if this court is aware of what needs to be done, the best efforts of this court would amount to no more than merely speculation. In any case, the court is without the jurisdiction to exercise a power reserved in the Constitution for only Mr. President as the appropriate authority.

Question No. 2

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

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 the 1999 Constitution.

(3) Whether the Court of Appeal was right in holding that sections 5(c), 10, 11(1)(b), 11(3) 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:

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 5(c), 10, 11(1)(b), 11(3), 11(4) and 12 of the same Act were invalid for not having been brought into conformity with section 315 of the 1999 Constitution of the Federal Republic of Nigeria? [Note: section 5(d) was inadvertently omitted.]

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 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 provision of this Constitution and shall be deemed to be –

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

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

The relevant sections of the 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.

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 it were imposed by a magistrate.

11.(3) Where an act of contempt isalleged 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 attendance of such person to pay all costs which may have been occasioned in compelling his attendance or by his failure or refusal or neglect to obey the summons, and may in addition fine such person a sum of twenty naira, such costs and fine to be recoverable in the same manner as if they were imposed by a magistrate’s court.

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

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

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

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

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

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 Court to Appeal did not answer the questions referred to it. It did not say, accordingly 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 text 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; (2001) 11 SCM, 80. 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 textual 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 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 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.”

SC. 360/2001