Chukwuemeka N. Agwuna V. The Attorney-general Of The Federation & Anor (1995) LLJR-SC

Chukwuemeka N. Agwuna V. The Attorney-general Of The Federation & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

This is an appeal against the unanimous decision of the Court of Appeal, Lagos in which it affirmed the ruling or the High Court. Lagos dated 23rd December, 1993 setting aside its earlier order made on 22nd October. 1993 on the ground that the said order was made without jurisdiction.

The brief facts involved in the case are as follows:-

The appellant is one of the three persons tried and convicted by the Miscellaneous Offences Tribunal. Lagos and sentenced to various terms of imprisonment. His appeal to the Special Appeal Tribunal against conviction for making a forged document was dismissed.

Since there is no further appeal from the decision of the Special Appeal Tribunal, the appellant in an effort to gain his freedom, filed in the High Court of Lagos State a Motion on Notice under Order 53 rule 3(1) of the High Court of Lagos State (Civil Procedure) Rules, 1971 with the following prayers:-

“1. An order of certiorari to remove into this Honourable Court and quash the same the decision of the Special Appeal Tribunal. Lagos date 27th May, 1993 which upheld the conviction and sentence on a count of forgery against the applicant passed by the Miscellaneous Offences Tribunal. Lagos.

  1. And for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.

And further take notice that the Grounds of this application are as follows:-

  1. That the Special Appeal Tribunal acted in excess of its jurisdiction.
  2. That the conviction of the applicant was affirmed for an offence which he did not commit.”

The motion was dated 25th June, 1993. The learned trial Judge (Adeyinka, J.) heard the motion after which he delivered a considered ruling on 22nd October, 1993 in which he granted the application and ordered as follows:-

“It is hereby ordered as follows:-

  1. An order of certiorari is hereby made and it is hereby ordered that the decision of the Special Appeal Tribunal Lagos dated 27th day of May 1993, which upheld the conviction and sentence on a count of forgery against the applicant Chukwuemeka Nnamdi Agwuna passed by the Miscellaneous Offences Tribunal Lagos be removed into this court to be quashed, and it is hereby quashed.

The applicant Chukwuemeka Nnamdi Agwuna shall be released from prison custody forthwith.”

There were attempts by the appellant to enjoy the fruits of the order granted by the High Court but which hit the rock. On application by the Attorney-General of the Federation and the Controller of Prisons, Federal Prisons Service, to the High Court to review and set aside the order of the writ of Habeas Corpus ad subjudiciendum of 14th December 1993 and directed to the Controller of Prisons, Nigerian Prison Services, on ground that it was made without jurisdiction, the same learned trial Judge considered the application, granted it, and set the writ aside in the following words:-

“The issue of jurisdiction is an exception to disobedience of court order. I refer to S. 1(8) Decree 9 of 1991 and hold that the first relief sought succeeds. It is hereby ordered as prayed.

The order of the writ of Habeas corpus ad subjudiciendum of the 14th day of December 1993 directed to the Controller of Prisons, Nigerian Prison Services is hereby set aside.”

The learned Attorney-General of the Federation and the Controller of Prisons appealed against the order of certiorari dated 22nd October, 1993 made by the learned judge while the present appellant cross-appealed against the order made by the trial Judge declining to enforce his order for the release of the appellant from prison on ground that he had no jurisdiction to do so.

In a unanimous judgment of the Court of Appeal. Lagos Division delivered by Pats-Acholonu, J.C.A. the appeal by the Attorney-General of the Federation and the Controller of Prison, Federal Prison Services was allowed and the cross-appeal of the present appellant was dismissed. The learned Justice concluded:-

“I am of the view that the High Court should not have assumed jurisdiction in the way it did and quashed the conviction on the order of certiorari.

In the circumstances, the appeal of the appellants succeeds. I have duly stated my view with regard to the issue raised in the cross-appeal. In this case, I cannot uphold the issue raised in the cross appeal.

I therefore dismiss the issue raised in the cross-appeal”

Dissatisfied with the judgment of the Court of Appeal, the appellant has now appealed to this court. Only one ground of appeal was filed which reads:”

Ground 1: The learned Justices of the Court of Appeal erred in law in holding and affirming that the supervisory jurisdiction which the High Court has over the Special Appeal Tribunal was ousted by sections 8- 10 of Decree 9 of 1991 when there was an error in law on the face of the record of the Tribunal

Particulars of Error

(a) The learned Justices erred when they affirmed the judgment of the lower court without taking cognisance of the fact that when there is an error Oil the fact of the Record of the tribunal, and notwithstanding the ouster clause, the court has the supervisory jurisdiction to inquire into such an error with the intent of correcting same in the interest of justice as the Judicial Tribunal is not set-up to decide the law wrongly.

(b) The learned Justices erred in law when they had rightly held that when an ouster clause seeks to deprive the court from looking into a provision that is plainly inhuman, oppressive, anti-people and repulsive, the court should strike such provision down, but still went ahead to affirm the judgment of the lower court in complete violation of the above pronouncement.”

In compliance with the Rules of this Court, parties filed and exchanged briefs of argument.

In the brief filed by the appellant one issue was formulated. It reads thus:”

Whether the learned Justices of the Court of Appeal were right in affirming that the ouster clause preclude the High Court from exercising any of its supervisory control over the findings of the Tribunal even where it reaches a wrong decision in law on which its jurisdiction is founded or where it makes a jurisdictional error in law notwithstanding the ouster clause”

In the respondents’ brief the following single issue was formulated for the purpose of determining this appeal:-

“Whether the Court of Appeal was right in upholding the decision of the High Court that it lacks the supervisory jurisdiction over the Special Appeal Tribunal by virtue of the ouster clause provisions in Sections 1(8), (9) and (10)of the Tribunal (Miscellaneous Provisions) Decree No.9 of 1991.”

The two issues, though worded differently speak of one and the same thing, to wit ouster of the High Court’s jurisdiction. So in determining this appeal I shall adopt the issue formulated in the appellant’s brief.

It is the contention of the appellant’s counsel that where the error complained of is on the face of the record, the tribunal has exceeded its jurisdiction and its decision is a nullity. In support of the submission above, learned Senior Advocate cited and relied on the following cases:- Re-Gilmore’s Application (1957) 1 All ER 796 at 801; Anisminic Case Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 and District Officer v. Queen (1961) 1 SCNLR 83 (1961) 1 All NLR 51 at56. He further submitted that the Court of Appeal was wrong in its decision, since the appellant did not commit any offence that the court could not interfere because of the ouster clause even though the evidence shows that the appellant was not guilty. He said that S. 1(8) – (10) of Decree No.9 of 1991 did not oust the jurisdiction of the courts of Habeas Corpus application.

In reply to the submissions above, learned counsel for the respondents said that the general unlimited jurisdiction of a State High Court is as stated in section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. Section 236(2) also confers on the High Court, in addition to that specified in sub-section (1) above, jurisdiction on those matters “which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.” Learned counsel submitted that with the Military intervention in Nigeria and promulgation of Decrees, the unsuspended provisions of the 1979 Constitution are generally subject to the provisions of Decrees. The case of Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 162 was referred to and relied on.

Learned counsel further submitted that although the powers of superior courts are wide, they are, however, limited by buster of jurisdiction in relevant or appropriate legislations: Shodeinde v. Registered Trustees of Ahmadiyya Movement-In Islam (1980) 1-2 S.C. 225; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 653 at 686; A.G. of the Federation v. Sode (1991) 1 NWLR (Pt. 128) 500 at 517; Osadebey v. A.G. Bendel State (1991) 1 NWLR (Pt. 169) 525 at 571 ;A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 at 581 and Anisminic Ltd. v. Foreign Compensation Commission (1969) A.C. 147. He also cited and relied on section 1(8)-(10) of the Tribunals Miscellaneous Provisions) Decree No.9 of 1991, section 21 (1) of the Recovery of Public Property (Special Military Tribunals) Act Cap. 389 Laws of the Federation of Nigeria, 1990 and section 11 ((1)-(2) of the Special Tribunal (Miscellaneous Offences) Act Cap. 410 of the Laws of the Federation of Nigeria 1990. He said a court of law is concerned with law as it is, and not as it ought to be and that it is not permitted to ascribe meanings to the clear provisions of a statute in order to make such provisions conform with the court’s own views of sound social policy -A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 and A.G. of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 500 at 517,541 and 545. He finally submitted that the Tribunals (Miscellaneous Provisions) Decree No.9 of 1991 has effectively terminated the supervisory jurisdiction of the High Court over inferior tribunals and that the provisions should be construed as amending section 236(2) of the 1979 Constitution and urged that the appeal be dismissed as lacking in merit.

The germane and determinant issue in this appeal is the construction and application of:

(1) Tribunals (Miscellaneous Provisions) Decree No.9 of 1991, subsection (8), (9) and (10) of Section 1.

(2) Special Tribunal (Miscellaneous Offences) Act Cap. 410 Laws of the Federation of Nigeria, 1990 (Vol. 22).

(3) Transition to Civil Rule (Political Transition) Act No. 10 of 1987 Vol. 23, Cap. 443, Laws of the Federation of Nigeria 1990, and

(4) Recovery of Public Property (Special Military Tribunals) Act No. 3 of 1984 (S.15(1) and 21) Cap. 389 of the Laws of the Federation of Nigeria, 1990 Vol. 21.

For ease of reference, I shall set out hereunder, the provisions of the said laws.

Sub-sections (8) (9) and (10) of section 1 of the Tribunals (Miscellaneous Provisions) Decree No.9 of 1991 read thus:

“1(8) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria, 1979 as amended or any enactment to the contrary the supervisory jurisdiction or power of judicial review of a High Court shall not be extended to any matter or proceedings before a tribunal duly constituted before or after commencement of this Decree.

(9) If any proceedings relating to the supervisory jurisdiction or power of judicial review of a High Court on a cause or matter brought before a tribunal is before any High Court after the commencement of this Decree, such action shall abate, cease or be deemed to be discontinued without any further assurance other than this Decree.

(10) Any order, decision; injunction or any other interlocutory order already made pursuant to any proceedings relating to the supervisory jurisdiction or power of judicial review of a High Court on a cause or matter before a tribunal shall at commencement of this Decree be null and void.”

Sub-section 11(1) of Special Tribunals (Miscellaneous Offences) Act. Cap.

410 of the Laws of the Federation of Nigeria, 1990 reads thus:

“11 (1) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to this Act and if any such proceedings are instituted before, on or after the commencement of this Act the proceedings shall abate, be discharged and made void.”

(2) The question whether any provision of Chapter IV of the Constitution of the Federal Republic of Nigeria has been, is being or would be contravened by anything done or proposed to be done in pursuant of this Act, shall not be inquired into in any court of law and, accordingly no provision of that constitution shall apply in respect of any such question.”

Section 15(1) of Recovery of Public Property (Special Military Tribunals) Act, (Cap. 389) Laws of the Federation of Nigeria, 1991 established the Special Appeal Tribunal. It reads thus:-

“(1) There is hereby established an appeal tribunal to be known and styled “The Special Appeal Tribunal (hereinafter in this Act referred to as the Appeal Tribunal”)”.

And section 21 of subsection (1) thereof provides:-

“21 (1) The validity of any direction, notice or order given or made or, as the case may be, of any other thing whatsoever done under this Act shall not be inquired into in any court of law and, accordingly, nothing in Chapter IV of the Constitution of the Federal Republic of Nigeria shall apply in relation to any matter arising out of this Act.”

The appellant was charged under section 3 of the Special Tribunal (Miscellaneous Offences) Act (Cap. 410) Laws of the Federation of Nigeria, 1990, and was tried by the Miscellaneous Offences Tribunal established under section 1(1) of the Act. He was convicted and sentenced to terms of imprisonment. The appellant exercised the right conferred on him by section 8 of the Act to appeal to the Special Appeal Tribunal.

Having regard to the facts and the argument of learned counsel in this appeal, it becomes clear that the salutary and determinant issue is: whether, having regard to the jurisdiction of the High Court under section 236(2) of the 1979 Constitution (as amended), the jurisdiction of the court to deal with the matter had not been ousted.

Section 236(2) provides that:-

“The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State or those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

(italics supplied for emphasis).

The jurisdiction exercised by the Lagos State High Court was supervisory since it dealt with orders of Certiorari and Habeas Corpus. The learned trial Judge after considering arguments for and against the court’s competence in granting the orders of Habeas Corpus and certiorari opined and concluded as follows:-

“It is settled principle of law that once the court is satisfied at any stage of the proceedings that it lacked jurisdiction to entertain a matter, the court must terminate the proceedings. I wonder why Mrs. Onuogu never raised Decree 9 of 1991 before the certiorari proceedings was heard. Nevertheless, the issue of jurisdiction can be raised for the first time in the Court of Appeal or the Supreme Court.

I refer to section 1 (8)-(10) of Decree 9 of 1991 and hold that the supervisory jurisdiction of the court to entertain the certiorari proceedings had been ousted by the Decree.

………

I refer to Chief Arthur Nzeribe v. A.G. a decision of this court the reference of which I cannot remember at the moment. The Court of Appeal considered the Decree ousting the supervisory jurisdiction of the Court and set aside the Ruling of this court on the ground that the court lacked jurisdiction to entertain certiorari proceedings.

That decision of the Court of Appeal is binding on this court. The issue of jurisdiction is an exception to disobedience of Court order.

I refer to section 1(8) – (10) Decree 9 of 1991 and hold that the first relief sought succeeds. It is hereby ordered as prayed.

The order of the writ of Habeas corpus ad subjudiciendum of the 14th day of December 1993 directed to the Controller of Prisons, Nigerian Prison Services is hereby set aside.”

Learned Senior Advocate for the appellant referred to in his brief and relied on several cases, both foreign and local in support of his submissions, particularly the decisions in Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 and The Queen v. District Officer & Anor (1961) 1 SCNLR 83 (1961) 1 All NLR 51.

The facts in Anisminic case (supra) are totally different from the facts of the present case, and even in that case the Lord Justices who decided the appeal were not all ad idem on the construction of the ouster clause contained in the Foreign Compensation (Egypt)(Determination and Registration of Claims) Order, 1959.

The ouster clause contained in section 4(4) of the Order reads thus:

“The determination by the commission on an application made to them under this Act shall not be called in question in any court of law”.

In his approach to the interpretation of the word “jurisdiction”. Lord Reid stated at page 171 as follows:-

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provision setting it up, it had no right to take into account.

I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.”

This notwithstanding it was the consensus of their Lordships in that judgment that where the ouster clause is clear and unambiguous, as to the intention of the law-makers, no other meaning is to be read into it even if the tribunal goes wrong in its decision, provided it made the decision within the confines of its statutory jurisdiction. The part of the judgment in Gilmore’s application (1957) 1 All ER 796 at 801 cited by learned Senior Advocate, in his brief does not support his case.

In that judgment Lord Denning LJ said:-

“I find it very well settled that remedy by certiorari is never to be taken away by any statute except by most clear and explicit words.”

(Italics supplied for emphasis)

The part cited by learned Senior Advocate is therefore lifted and cited out of con.

The appellant was tried along with others under the Special Tribunal (Miscellaneous Offences) Act (Cap. 410) Laws of the Federation of Nigeria, 1990 which conferred the Tribunal with the exclusive jurisdiction to try the category of offences with which the appellant along with others was charged, tried and convicted. The appellant exercised his right of appeal under section 8 of the Act and appealed to the Special Appeal Tribunal. Section 11(1) and (2) of Cap. 410 is very clear on the exclusion of the jurisdiction of any court to interfere with any decision of either the Special Tribunal of the Special Appeal Tribunal. Sub-section (2) of Section 11 is specific in its exclusion of inquiry into any decision questioning the infraction of any provision of Chapter IV of the Constitution of the Federal Republic of Nigeria or contravention of any other provision of the said Constitution done under the Act by the tribunal, in any court of law.

If all the ouster clauses copied in this judgment are read together, it is as clear as daylight, that the jurisdiction of all courts, other than the tribunals established under the Act, has been ousted, including the supervisory jurisdiction of the High Court conferred on it by section 236(2) of the Constitution.

It has not been shown in this appeal that any of the tribunals had exercised any powers not conferred on it in dealing with the case.

The decision in the Queen v. District Officer & Ors (supra) cited and relied on by learned counsel is also not apposite. The facts are dissimilar. In that case the District Officer gave judgment in favour of a party – “Kutia” who was not a party to the case. That was why Ademola, C.J .F. said in his judgment, while construing section 28(1) of the Native Court Ordinance –

“It seems clear to me that this provision does not admit of any “foreign” or third party to the proceedings before the District Officer.”

The above quotation shows that the District Officer exercised a jurisdiction not conferred on him by the Ordinance and his decision was therefore a nullity.

A tribunal may commit a mistake of law or fact when reaching its decision.

So long the mistake is committed within the confines of its jurisdiction, and where there is a clear an unambiguous ouster clause prohibiting interference with its decision, a superior court exercising supervisory jurisdiction cannot interfere with it. See R. v. Northumberland Compensation Appeal Tribunal Ex Parte Shaw (1952) 1 KB 338 at 346 where Denning LJ said:-

“No one has ever doubted that the Court of King’s Bench can intervene to prevent a statutory tribunal from exceeding the jurisdiction which parliament has conferred on it: but it is quite another thing to say that the King’s Bench can intervene when a tribunal makes a mistake of law. A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.”

See also Shodeinde v. Registered Trustees of Ahmaddiyya Movement-in Islam (1980) 1-2 S.C. 225; Osadebey v. A.G. Bendel State (1991) (Pt. 169) 1 NWLR 525; A.G. of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 500 and Anambra State v. A.G. of the Federation (1993) 6 NWLR (Pt. 302) 629.

In my view, the learned Justice of the Court of Appeal (Pats-Acholonu, J.C.A.) is perfectly right in his conclusion that:-

“Secondly, the Special Appeal Tribunal in this case before us might have been wrong in the way it handled the case, but the Decree that set it up did not oust the jurisdiction of the court so that the appeal tribunal would give atrocious judgments. Where an enactment wears the garb of nazi-like laws so much so that the people who implement it cannot be allowed to take shelter on the excuse that they were obeying positive laws, such a law should be declared null and void.

In this case before us, I am in tune with the view expressed by the Supreme Court, in Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976)1 All NLR 409 at 421 that where person’s right of access to the courts may be taken away or restricted by statute, the language of any such statute will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. The law at hand was made at that time to take care of certain prevailing emergencies, and is not to last long.

In the course of preserving law and order actions may be taken by which one or two suffers, and not the generality of the people being emasculated. It is to be regretted during the time the emergencies last. On that basis, the law made to take care of such emergency shall be treated with some element of leniency as long as it does not offend the fundamental principles governing people’s life. Much as I deplore and detest ouster clauses, I am of the view that the High Court should not have assumed jurisdiction in the way it did and quashed the conviction on the order of certiorari.”

The other Justices of the Court of Appeal were unanimous in concurring with the decision above.

The appeal therefore fails and it is hereby dismissed. The decisions of the lower courts are hereby affirmed with no order as to costs.

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Wali, J.S.C. I agree that this appeal has no merit and that it should be dismissed. Accordingly the appeal is hereby dismissed and the decision of the Court of Appeal, which confirmed that of the High Court, is hereby affirmed, with no order as to costs.

OGUNDARE, J.S.C.: I have had the advantage of a preview of the judgment of my learned brother Wali, J.S.C just read. I agree with him that this appeal is lacking in merit. For the reasons given by him in the said judgment, I too dismiss it and affirm the decision of the Court below.


SC.158/1994

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