General Ishaya Rizi Bamaiyi (Rtd.) V. Attorney-general Of The Federation & Ors. (2001)
LAWGLOBAL HUB Lead Judgment Report
The main issue in this appeal is whether the Court of Appeal has any discretion under section 295(2) of the 1999 Constitution of the Federal Republic to refuse to answer a question referred to it by the Federal High Court.
The background facts of this case briefly are in the following narrative. The appellant who was Chief of Staff of Nigerian Army during the regime of late General Sani Abacha was invited by the National Security Adviser, the 2nd respondent, for questioning. He was alleged to have facilitated the provision of arms that were used in the attempted murder of Mr. Alex Ibru. The appellant was detained in a house at Forte IBB Barracks, Abuja on 13th October, 1999.
On 5th November, 1999 the appellant sought leave to enforce his fundamental right challenging his detention. He also applied to the trial Federal High Court for the following declaratory reliefs and orders:
“A. A declaration that the arrest of the applicant on 13th October, 1999 by the respondents, their officers, servants, privies is without justification, illegal, unlawful and consequentially, a violation of the applicant’s fundamental rights as secured to the applicant by sections 35 and 41 of the 1999 Constitution and Articles 4, 5, 6 and 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Acts Cap. 10 Laws of the Federation of Nigeria 1990.
B. A declaration that the detention. house arrest, restriction of movement of the applicant since the 13th of October, 1999 by the respondents at the Chief of Army Staff’s Guest House, Forte IBB Barracks, Abuja, is illegal, unlawful and consequentially, a violation of the applicant’s fundamental rights as secured to the applicant by sections 35 and 41 of the 1999 Constitution and Articles 4,5,6, and 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990.
C. A declaration that the A.-G., of the Federation (1st respondent) is without power to constitute a Special Investigation Panel (S.I.P) to investigate an alleged commission of a crime by the applicant.
D. A declaration that the A.-G.’s Special Investigation Panel (S.I.P) constituted to investigate alleged commission of a crime by the applicant is illegal, unconstitutional, null and void and consequentially a usurpation of the statutory powers of the Nigeria Police Force.
E. A declaration that the proceedings, report and the recommendation of the A.-G.’s Special Investigation Panel (S.I.P) dated 26th October, 1999 is illegal, void and cannot form the basis upon which the Attorney General of the Federation (1st respondent) or any other authority can lay a charge against the applicant.
F. A declaration that the conduct of the A.-G.’s Special Investigation Panel in its proceedings, utterances, deeds and leakage of misleading information to the media is illegal, unlawful, reprehensible, ultra vires, malicious and constitutes a gross violation of the applicant’s fundamental rights as guaranteed under section 36 of the 1999 Constitution and Articles 4, 5, and 7 of the African Charter on Human and People Rights (Ratification and Enforcement) Acts Cap. 10 Laws of the Federation of Nigeria 1990.
G. An order of mandatory injunction compelling the respondents whether by themselves or their officers, servants, privies or otherwise howsoever, to forthwith release the applicant. H. An order of injunction restraining the respondents whether by themselves, servants, privies or otherwise howsoever from further arresting, arraigning the applicant in any court of law upon the findings of the Attorney-General’s Special Investigation Panel or in any other manner infringing on the fundamental rights of the applicant.
I. An order quashing the establishment, proceedings, reports, and findings and recommendation of the Attorney- General’s Special Investigation Panel.
J. Such consequential or other orders including the payment of N100, 000, 000. 00 (One hundred million Naira) as compensation to the Applicant for the purpose of securing his fundamental rights under the 1999 Constitution, to which the applicant may be entitled to. ”
The Learned trial Judge granted most of the prayers except C and D and ordered the immediate release of the appellant from house detention. The appellant was however not released. He was instead flown from Abuja to Lagos where he was arraigned before a Chief Magistrate on a two-count charge of conspiracy and attempted murder. The Chief Magistrate remanded him in Kirikiri Maximum Security Prison, Lagos. Meanwhile, learned counsel for the applicant, Mr. Mike Okoye, filed an application before the High Court seeking an order of committal of the 1st respondent, the Attorney General of the Federation to prison for contempt of the court’s order. Learned counsel also filed another application requesting for release of the appellant from Kirikiri Maximum Security Prison. He also prayed for the stay of proceedings in charge No. MIK/A/912/99 between Commissioner of Police v. Lt. General Ishaya Bamaiyi (rtd) & Ors pending the hearing of the appellant’s application for the enforcement of his fundamental Rights. The respondents filed an appeal to the Court of Appeal against the ruling of the High Court in which the court ordered the immediate release of the appellant from the House detention at No. 12 Forte IBB Barracks, Abuja.
On 3rd December, 1999, when the suit came before the learned trial Judge for argument of various interlocutory applications, learned counsel for the appellant orally moved the court to refer the following constitutional question for the interpretation of the Court of Appeal.
“Whether by the provisions of section 174 of the Constitution or any provisions, the Federal Attorney-General has the power to constitute the special investigation panel that investigated the applicant and the report which forms the basis of the charge against them (sic) before the Magistrate Court”
The Court of Appeal, Coram, Akpabio, Muntaka-Commassie & Oduyemi JJCA, considered the submissions of counsel and refused to answer the question because it did not arise from the proceedings before the High Court. The case was thereafter sent back to the High Court for the continuation of hearing of the applications brought by the parties for the court’s determination. Dissatisfied with the decision of the Court of Appeal, the appellant filed this appeal.
Five issues have been identified by the appellant’s counsel for the determination of this appeal. The issues formulated by learned counsel for the respondents although couched differently can be subsumed in the issues identified by the appellant’s counsel. The issues raised by the appellants counsel are as follows:-
“1. Whether the Court of Appeal has any discretion under section 295(2) of the 1999 Constitution to refuse to answer the question referred to it.
- Whether the Court of Appeal is entitled in reference under section 295(2) of the 1999 Constitution to review a decision on fact made by the trial court not appealed against.
- Whether the Court of Appeal was right to have determined the substantive issue pending before the Federal High Court in a matter of reference.
- Whether an applicant seeking to enforce his fundamental rights requires any additional leave over and above that prescribed in Order 1 Rule 2 of the Fundamental Right (Enforcement Procedure) Rules for reliefs sought in the statement accompanying his application.
- Whether the reason given by the Court of Appeal in refusing to answer the question is justified in law.”
The only issues, in my respectful view, which are germane to the question referred to the Court of Appeal for its interpretation are issues 1 and 5. I will consider the two issues together. The submissions on the issues can be better understood if section 295 1(a)(b) and 2 of the Constitution, 1999, is reproduced. It reads as follows:
“295(1) Where any question as to the interpretation or application of this Constitution arises in any proceedings in any court of law in any part of Nigeria (other than in the Supreme Court, the Court of Appeal, the Federal High Court or a High Court) and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any of the parties to the proceedings so requests, refer the question to the Federal High Court or a High Court having jurisdiction in that part of Nigeria and the Federal High Court or the High Court shall
(a) if it is of opinion that the question involves a substantial question of law, refer the question to the Court of Appeal or
(b) if it is of opinion that the question does not involve a substantial question of law, remit the question to the court that made the reference to be disposed of in accordance with such directions as the Federal High Court or the High Court may think fit to give.
(2) “Where any question as to the interpretation of this Constitution arises in any proceedings in the Federal High Court, or a High Court. and the court is of’ opinion that the question involves a substantial question of law, the court may, and shall if’ any party to the proceedings so requests, refer the question to the Court of’ Appeal; and where any question is referred in pursuance of this sub-section, the court shall give its decision upon the question and the court in which the question
arose shall dispose of the case in accordance with that decision. ”
Looking at the section of the Constitution reproduced above it is manifestly clear that only subsection 2 is relevant for the determination of this appeal. Learned counsel for the appellant submitted that under subsection 2 there is no provision for the opinion of the Court of Appeal to which the matter is referred. The said section is mandatory and does not give room for any exercise of discretion to refuse to answer the question. Counsel further argued that under subsection 2 the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision. He cited, in support, the case of UNTHMB v. Nnoli (1994) 8 NWLR (Pt,363) 376 in which this court held that the word “shall” in sections 9(1) and 13 of the University Teaching Hospitals Reconstitution of Boards etc.) Act, Cap. 463, Laws of Federation of Nigeria 1990 was mandatory and did not permit any discretion, variation or circumvention of the clear procedure to be followed. Learned counsel Mr. Mike Okoye submitted further that going by the clear provisions of section 295(2), the Court of Appeal cannot in law, refuse to answer the question referred to it. Counsel emphasised that it would amount to a clear abdication of Constitutional responsibility of the Court of Appeal to refuse to answer a question as to the interpretation or application of the constitution referred to it.
I should pause here to ask, “Is it mandatory for the Court of Appeal to answer any question referred to it by the High Court pursuant to the provisions of section 295(2) of the Constitution, even if the question is irrelevant to the proceedings before the High Court The answer is definitely NO. I agree with Rotimi Jacobs, learned counsel for the respondents, that it is wrong to construe the words, “shal1 give its decision upon the question” under S.295(2), to mean “shall answer the question”. The provision of the Constitution is clear and not ambiguous. “Decision” as interpreted in the 1999 Constitution means, in relation to a court, “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”, See section 318 of 1999 Constitution. In Black’s Law Dictionary “Decision is explained as follows:
“A determination of a judicial or quasi judicial nature. A judgment, decree, or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. ”
A decision is therefore a pronouncement made by a court which stands as its final verdict to a question brought before it for determination. See Akande and Ors. v. Adesanwo and Ors. (1962) All NLR 206 and Lomi Aduke v. Daniel Longe (1962) All NLR 201.
In the case in hand, the Court of Appeal considered the question referred to it by the Federal High Court and, in a very well considered ruling, held that the subject-matter of the reference had not arisen in the proceedings before the court and for the same reason the court declined to interpret the question referred to it. Mr. Rotimi Jacobs referred to the case of Olawoyin v. Commissioner of Police (No.2) (1961) 2 SCNLR 278; (1961) 1 All NLR 622 where this court refused to answer a question on the issue concerning fair trial referred to it by the High Court of Northern Nigeria as guaranteed by the Federal Constitution of 1960. The Supreme Court declined to answer the question in the following words:
“As we are of the opinion that the questions put to us do not arise under Section 108(2) of the Constitution we shall send the matter back to the High Court of the Northern region for it to proceed with the appeal before it”.
If the question referred to the Court of Appeal for its determination did not arise from the proceedings before the trial court, it will be an academic exercise. Courts have no jurisdiction to deal with hypothetical or academic questions not grounded in reality or on facts. The reality of this case is that the question referred to the Court of Appeal for interpretation did not arise from the proceedings before the trial High Court. The provision of the Constitution under Section 295(2) is very clear. From the wordings of this provision it is not just every question requiring constitutional interpretation that should be referred to the Court of Appeal. Before such a question can be so referred, the issue must arise in the proceedings before the High Court. See Obayogie v. Oyowe (1994) 5 NWLR (Pt.346) 637 at 643.
Even if the issue is relevant to the proceedings, the constitutional provision does not give parties free ticket to the Court of Appeal. There must be a substantial question of law so found by the court before a reference demanded by a party can be made by the High Court – Senator Victor Akan and Anor. v. Attorney-General of Cross Rivers State & 7 ors. (1982) 3 NCLR 881. The Court of Appeal is therefore quite right to refuse to answer the question referred to it for interpretation. I think the appellant’s counsel has put the cart before the horse. It is .when the proceedings have commenced and a matter arises which, by the arguments of counsel, invites more than one interpretation that a reference can be made the Court of Appeal or the Supreme Court, as the case may be.
This decision has determined this appeal. The other matters raised in other issues cannot be considered now because they are all related to the question which the Court of Appeal has declined to interpret. This appeal is therefore dismissed. The ruling of the Court of Appeal is hereby affirmed. I award N10,000.00 costs in favour of the respondents.