The Federal Republic Of Nigeria V Lord Chief Udensi Ifegwu (2003)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, JSC.

The respondent was one of six accused persons arraigned and tried before the Failed Banks Tribunal, Lagos. The charge contained ten counts although he was involved in only counts 1 and 10. On 19 March, 1996, the Tribunal presided over by Ope-Agbe, J. as Chairman convicted the respondent on the two counts and sentenced him to 5 years in prison in respect of count 1 and N100,000.00 fine or 3 years in prison in respect of count 10. He appealed to the Special Appeal Tribunal (coram: Hon. Justice D.O. Coker (Chairman) and Chief (Mrs) P.C. Ajayi-Obe, SAN (Member)]. On 29 May, 1997, the Special Appeal Tribunal allowed the appeal on sentence by substituting for each of counts 1 and 10, N100,000.00 fine or 2 years in prison. Thus the respondent came to the end of the road as far as the appellate process was concerned since under section 5 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 which gave him a right of appeal to the Special Appeal Tribunal, it was provided thus:

“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to he Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree 1984, as amended, in accordance with the provisions of that Decree.

(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the Tribunal shall be final.”

It was obvious that the right of appeal was no longer available to the respondent. But he did not give up nor did his counsel, Professor Adesanya, SAN. The learned Senior Advocate filed an originating summons in the Federal High Court, Lagos in June, 1999. He came under Fundamental Rights Protection. The sum total of the complaint was that Failed Banks Tribunal and the Special Appeal Tribunal which heard the case acted in breach of the fundamental rights of the respondent guaranteed under section 33 of the 1979 Constitution then applicable, being without jurisdiction to try, convict and sentence him in respect of the counts laid against him. Put in another way, that he could not be made to suffer criminal penalties for acts which did not constitute any offence at the time they were done.

The originating summons sought three reliefs upon the determination of two questions. The three reliefs were:

“(1) A Declaration that the Failed Banks Tribunal, Zone II, Lagos as well as the Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the Plaintiff under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 of Count 1 in the Charge No. FBFMT/LZII/IC/95 and Appeal No SAT/FBT/273/96 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria, 1979 as amended being the law in force at the relevant date.

(2) A Declaration that the Failed Banks Tribunal, Zone II, Lagos as well as The Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the Plaintiff under the

Banks and Other Financial Institution Decree, 1991 of Count 10 in the charge No FBFMT/LZII/IC/95 and Appeal No SAT/FBT/273/96 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria, 1976 as amended) being the law in force at the relevant date.

(3). An Order setting aside the conviction and sentence.”

It is relevant to also reproduce the two questions for determination because they were the very questions referred by the Federal High Court presided over by Odunowo, J. under section 295(2) of the 1999 Constitution to the Court of Appeal.

They read as follows:

“(1) Whether the Failed Banks Tribunal, as well as the Special Appeals Tribunal had the jurisdiction to try, convict and sentence the Plaintiff on count 1 in the Charge No FBFMT/LZII/IC/95 under the Failed Banks (Recovery of Debts) and Financial Malpractice in Bank Decree, 1994 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 as amended.

(2) Whether the Failed Banks Tribunal, as well as the Special Appeals Tribunal had the jurisdiction to try, convict and sentence the Plaintiff on count 10 in Charge No FBFMT/LZII/IC/95 under the Banks and Other Financial Institutions Decree 1991 in view of Section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 as amended.”

The respondent was a director of Alpha Merchant Bank Plc from 2 June, 1988 till some time in 1993. He claimed that he was made a director “by virtue of the investments made by my associates and me in the equity” of the bank. The said bank’s licence was revoked by the Central Bank of Nigeria by a publication in the Official Gazatte of the Federal Republic of

Nigeria No. 9, vol. 21 of 8 September, 1994. The bank had been an authorised dealer in foreign exchange. The respondent maintained accounts with the bank through his companies known as Dubic Industries Ltd., D.U. Chemicals Ltd. and African Pulp and Paper Mills Ltd. He was alleged to have “over-utilised foreign exchange for which he did not provide equivalent naira cover for the amount.” It was for this reason that two count on which he was convicted out of the ten filed before the Failed Banks Tribunal were laid against him as follows:

“Count 1:

That you, Lord Chief Undensi Ifegwu (now at large), Jimi Adebisi Lawal (now at large), Tony Nnachatta, Jeff Fayom while being Directors and or Managers of Alpha Merchant Bank Plc (now in liquidation) at Lagos, between 30th June 1988 and 1st October 1993 conspired to commit a felony, to wit fraudulently granting credit facilities to Dubic Industries Limited without lawful authority in contravention of rules and regulations of the said Alpha Merchant Bank Plc and the regulatory authorities (CBN/NDIC) and thereby committed an offence punishable under Section 516 of the Criminal Code Act, Cap. 77 Laws of the Federation 1990 to be read with Section 3(1)(b)(c) and (d) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 as Amended.

Count 10:

That you, Lord Chief Udensi Ifegwu (now at large), between 30th June 1988 and 1st October, 1993 at Lagos while being a Director of Alpha Merchant Bank Plc. (now in liquidation) and also a Director of Dubic Industries Limited was connected with the granting of credit facilities totaling US$2,962,062.89 (Two million, nine hundred and sixty-two thousand Dollars, eighty-nine cents) (sic) now equivalent of N242,889,156.98 (Two hundred and forty-two million, eight hundred and eighty-nine thousand, one

hundred and fifty-six naira, Ninety-eighty kobo only) to Dubic Industries Limited without declaring your personal interest in the said facility to the then Board of Directors as required by Section 18(3) of the Banks and Other Financial Institutions Decree 1991 and thereby committed an offence punishable under Section 18(9) of the same Decree.”

As already indicated, the two question set down by the respondent in the originating summons were referred to the Court of Appeal, Lagos Division. The reference was made upon the request of the respondent as indicated in a motion on notice. The Enrolment of Order in this regard shows that the motion on notice was filed on 12 July, 1999 and was heard on 27 October, 1999. It was moved by Professor Adesanya SAN on behalf of the respondent as plaintiff/applicant. The appellants as defendants were absent and unrepresented. Whether the reference was properly made without giving the appellants a hearing has been made an issue in this appeal just as it was raised in the court below.

The court below constituted a full court and proceeded to consider the matter on the basis of four issues raised by the plaintiff and three issues by the defendants in their respective briefs of arguments. It will be recalled that the reference made to the Court of Appeal put two specific questions for the decision of the court. The issues raised by the parties were intended to assist the court to reach a decision on the two questions referred to it. On the 25 June, 2001 the court below rendered its decision unanimously but the decision did not as much contain answers specifically to the two questions, except by implication that they were given in the negative. The leading judgment of Aderemi JCA, with which the other four learned Justices concurred, concluded as follows:

“In the final result and for all I have said above, it is my judgment that the plaintiff’s Suit is meritorious. If the matter were on an appeal before us I would have, for the reasons that there is no crime styled as ‘fraudulently granting credit facilities’ and the conviction for that crime being in violation of the provision of Section 33(12) of the 1979 Constitution and the

law on which the charge was laid was given retrospective application, allowed the appeal, set aside the conviction and sentences. But, since the matter came to us, by reference (Case Stated), I return the following answers:

(1) There is no crime known to Nigeria Law as ‘fraudulently granting credit facilities.’

(2) Conviction on a crime which is unknown to law is unconstitutional and must not be allowed to stand.

(3) It is unconstitutional, indeed it is a violation of all known principles of law to convict the plaintiff of conspiracy to commit a felony in the circumstances of this case where the facts alleged as amounting to felony occurred in 1991 while the Failed Bank Decree under which the felony was charged commenced on the 9th of November 1994.

(4) It is improper, in law to convict the plaintiff for (sic) Counts 1 and 10 under the BOFID as a whole without drawing any distinction, when the facts on which the crime was predicted occurred in part before the commencement of the BOFID and partly after the commencement of the BOFID.”

The defendants/appellants in their appeal against the judgment have raised six issues for determination. With profound respect to the learned Senior Advocate for them, Mr. Fagbemi, who I note for his industry, I think most of the issues were raised largely upon some misconception. In fairness to him, he may have been misled to some extent to take all manner of issues with the judgment essentially because of the approach adopted by the court below in attending to the reference made to it. The issues read as follows:

“(1)Were the learned justices of the Court of Appeal right in not striking out this case stated when ex-face the trial Federal High Court lacked jurisdiction to make the reference? – grounds 1, 3 and 7.

(2) Whether the Court of Appeal was right in entertaining the reference when the condition precedent to the exercise of jurisdiction to refer by way of case stated by the Federal High Court had to the finding of the Court of Appeal not been fully established? (sic) – ground 9.

(3) Was the Court of Appeal right in holding that the provisions of section 33(8) and (12) of the 1979 constitution took precedence over the Failed Bank and BOFID Decrees in the face of the Supreme Court restatement of the hierarchy of our laws during a military inter regnun? – ground 2.

(4) Was the Court of Appeal right in not dismissing the case stated when ex facie it is statute barred and also caught by issue estoppel? – ground 4 and 6.

(5) Was the Court of Appeal right in its application of the Supreme Court decision in 7-UP Bottling Co. Ltd V. Abiola & Sons Ltd (1995) 3 NWLR (pt. 383) 257 to the facts of this case and in its justification of the hearing ex parte of the motion on notice praying for the reference? – ground 5.

(6) Whether the misuse of the word ‘fraudulently’ in the description of the offence for which the Respondent was convicted was material enough to vitiate the conviction when the Respondent was not deceived or misled by the description? – ground 6.”

Issues 1, 2, 4 and 5 were argued together by the appellants in their brief of argument. The argument on them covers, naturally I would say, a major part of the brief.

Issues 1, 4 and 5

I intended to consider and resolve issues 1, 4 and 5 together before I deal with issues 2, 6 and 3 in that order. Part of the submission of Mr. Fagbemi, SAN, is that the Tribunal had exclusive jurisdiction to hear the charge against the respondent in respect of the two counts which were endorsed in the originating summons filed in the Federal High Court. It was on the basis of that endorsement that a motion on notice seeking that a reference be made to the Court of Appeal was filed. The argument goes that the nature of a claim has to be examined to ascertain whether a matter comes within the jurisdiction which a statute confers on a court. The learned Senior Advocate thereafter further submitted in the terms I shall paraphrase but closely using his words (a) that the Federal High Court does not have the jurisdiction to adjudicate over the matters stated in the originating summons and therefore has no power to hear the motion seeking to make a reference to the Court of Appeal; (b) that the Court of Appeal consequently lacks the competence to make any determination of the questions so referred to it; (c) that section 1(5) of the Failed Banks Decree No 18 of 1994 excluded the exercise by the High Court of “the usual ‘supervisory jurisdiction’ or ‘power of judicial review’ irrespective of the provisions of any unsuspended section of the 1979 Constitution”; (d) that section 5(2) of Decree No. 18 of 1994 made the decision of the Special Appeal Tribunal final; (e) that as the jurisdiction of the Federal High Court is as prescribed in section 7 of the Federal High Court Act and section 230(1) of the 1979 Constitution as amended by Decree No 107 of 1993, that court cannot exercise supervisory jurisdiction over causes and matter arising from decisions taken by the Failed Banks Tribunal or the Special Appeal Tribunal.

It is, I think, important at the outset to point out by saying that, as I see it, the problem was not so much with the Decrees [Decree No. 25 of 1991 and Decree No. 18 of 1994] relied on for bringing charges to the Failed Banks Tribunals. It was more, and indeed squarely, with the perception of those who framed and prosecuted the charges and of their

misapprehension of the relevant provisions of the said Decrees. It must be realized that neither Decree No. 25 of 1991 nor Decree No. 18 of 1994 is made retroactive. The 1991 Decree was made on 20 June, 1991 with the same commencement date. So also the 1994 Decree which was made on 9 November, 1994 had its commencement from that date. The respondent was charged with count 1 under the 1994 Decree. Section 19 created offences. Subsection (1) of section 19 which is relevant to the said count 1 used words in no way suggestive that the offences relate or could relate to past acts of anyone sought to be charged thereunder. This tendency to the prospectivity of the provision is, in my view, reinforced by the commencement date of the Decree. I feel compelled at this point to reproduce section 19(1) in full as follows:

19(1) Any director, manager, officer or employee of a bank who

(a) knowingly, recklessly, negligently, willfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person.

(i) without adequate security or collateral, contrary to the accepted practice or the bank’s regulations, or

(ii) with no security or collateral where such security or collateral is normally required in accordance with the bank’s regulations, or

(iii) with a defective security or collateral or

(iv) without perfecting, through his negligence or otherwise, a security or collateral obtained; or

(b) grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility which is above his limit as laid down by law or any regulatory authority or the bank’s regulations; or

(c) grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility to any person in contravention of any law for the time being in force, any regulation, circular, or procedure as laid down, from time to time, by the regulatory authorities or by the bank; or

(d) receives or participates in sharing, for personal gratification, any money profit, property or pecuniary benefit towards or after the procurement of a loan, an advance, a guarantee or any other credit facility from any person whether or not that person is a customer of the bank; or

(e). recklessly grants or approves a loan or an interest waiver where the borrower is known to have the ability to repay the loan and interest, is guilty of an offence under this decree.”

It is plain that each paragraph of subsection (1) looks to the present and future by talking only of what the culprit engages in doing but does not include even impliedly what he had done before the commencement date of the Decree. This appears to me to be in consonance with an intention to punish for an offence that was committed as from 9 November 1994, the commencement date of the Decree. In other words, the Decree did not envisage retroactive effect. Section 33(8) of the 1979 Constitution which was unsuspended and was then applicable also forbade retroactivity of criminality as follows:

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”

It follows that Decree No 25 of 1994 and section 33(8) of the 1979 Constitution were in harmony. There was no conflict. That circumstance clearly upheld a fundamental principle of constitutional liberty based on the notion that a person is not to be punished for an act which was not a crime at the time it was done: see Aoko V. Fagbemi (1961) 1 All NLR 400. See also Ogbomor V. The State (1985) 1 NWLR (pt. 2) 223 at 233 where this court said that as a result of the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law, no person can be so tried and convicted on it.

The appellants argue that the Federal High Court does not have jurisdiction over matters contained in the originating summons and therefore could not entertain the action to make a reference in respect of them to the Court of Appeal. The matters in question are the declaratory reliefs sought and the order to set aside the conviction and sentence of the respondent. As submitted by Professor Adesanya, learned Senior Advocate for the respondent, the right to seek these reliefs is predicated on the protection conferred by section 33(8) of the 1979 Constitution which the respondent alleges has been contravened. The said protection falls under Fundamental Rights, Chapter IV, of the 1979 Constitution.

The jurisdiction of the Federal High Court to entertain the action does not depend on whether it was empowered, at the relevant time, to try offences with which the respondent was charged. What is important is the cause of action which he claims to have. If that cause of action comes within the ambit of the enforcement of any fundamental right contained in Chapter IV in the sense that the respondent alleges that any of the provisions of that Chapter has been, is being or likely to be contravened in relation to him, then the Federal High Court is eminently conferred with jurisdiction to entertain the action. The respondent has made it abundantly clear from the nature of his claim, and the questions he asked the Federal High Court to refer to the Court of Appeal, that his allegation is that his fundamental right has been contravened.

With due respect, I do not think that the argument of the learned Senior Advocate for the appellants that it is not within the competence of the Federal High Court to entertain an action of this type which is brought to protect a fundamental right is tenable. Section 1(5) of Decree No. 18 of 1994 relied on by the appellants does not affect that right. The said provision was meant to deny a High Court the exercise of its supervisory jurisdiction or powers of judicial review in regard to Failed Banks Tribunal proceedings. It reads thus:

“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 extend to any matter or proceeding before the Tribunal duly constituted under this Decree.”

Emphasis mine]

But the jurisdiction conferred on a High Court under section 46 of the 1999 Constitution is neither a supervisory jurisdiction nor the powers of judicial review. It is far beyond and outside of that. It is a special jurisdiction conferred under Chapter IV provisions mainly for the purpose of enforcing or securing the enforcement of fundamental rights. Subsections (1) and (2) of the section read:

“46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”

It is not in doubt that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing action in a High Court: see Director, S.S.S. V. Agbakoba (1999) 3 NWLR (pt. 595) 314. The manner in which the court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the right so guaranteed under the Constitution. The court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons: see Saude V. Abdullahi (1989) 4 NWLR (pt. 116) 387. That seems to underline the concerns in regard to redressing a contravention of a fundamental right by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.

It has been contended by Mr. Fagbemi SAN as expressed in the submissions in a paragraph of the appellants’ brief of argument earlier paraphrased that the Federal High Court does no have the jurisdiction to adjudicate over “the matters contained in the originating summons” and therefore lacked the jurisdiction to entertain the motion by which the respondent sought a reference to the Court of Appeal. It was specifically argued that “the jurisdiction of the Federal High Court to inquire into causes and matters were as prescribed in section 7 of the Federal High Court Act and section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993.” Although the learned Senior Advocate cited no decided case in support of this submission, I believe the decision of this court in Tukur V.

Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is the nearest to it. It is unnecessary for me to discuss that decision here since it would appear inapplicable to the circumstances of this case and more so, of course, that neither of the parties has placed reliance on it. There may be an appropriate occasion for that. But it is enough to say that that decision came before the copious amendment made to section 230(1) of the 1979 Constitution [now section 251(1) of the 1999 Constitution by Decree No. 107 of 1993].

Under that provision of the 1999 Constitution, the Federal High Court, among other things, has jurisdiction in civil causes and matters-

l connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal matters: see s.251(d).

l subject to the said provision, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies: see s.251(1)(q).

The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection(1) of section 251: see s.0251(3).

The jurisdiction conferred on the Federal High Court by the above provisions covers matters concerning banking, foreign exchange and criminal causes arising therefrom, and the interpretation of the Constitution as it affects the action of the Federal Government against the present respondent. The claim as it stands raises no doubt that the Federal High Court must be seen to have jurisdiction to entertain it for the purpose of enforcing the fundamental right involved. However, for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right: see Tukur V. Government of Taraba State (1997) 6 NWLR (pt. 510) 549; Sea Trucks Nig. Ltd V. Anigboro (2001) 1 S.C. (pt. 1) 45; (2001) 2 SCM, 168. The reliefs sought by the respondent in this case are entirely to enforce a fundamental right.

Argument has been canvassed by the learned Senior Advocate for the appellants that section 5 of Decree No. 18 of 1994 created a right of appeal from the decision of the Failed Banks Tribunal. It is contended that the respondent duly exercised his right of appeal to the Special Appeal Tribunal which arrived at a decision on 29 May, 1997 and that by virtue of the said section 5, that decision shall be final. It is submitted on that basis by him that the matter of the conviction of the respondent and sentence is regarded closed and the Federal High Court lacked the jurisdiction to entertain this claim as stated in the originating summons. That argument may sound attractive but, with due respect, it is without merit.

The learned Senior Advocate for the respondent in his submission contends that where the jurisdiction of a Tribunal is being challenged, the fact that the statute which set up the said Tribunal says that its decision shall be final does not foreclose the jurisdictional issue. He cited Nigeria Ports Authority V. Panalpina World Transport (Nig) Ltd (1974) 1 NMLR 82 at 95; Udosen V. National Electoral Commission (1997) 5 NWLR (pt. 506) 570. I find myself in agreement with this submission. It should be remembered that the action brought by the respondent in the Federal High Court is not further appeal from the decision of the Special Appeal Tribunal. It is an action brought under the Fundamental Rights procedure to show

that the prosecution was done in violation of the right guaranteed to the respondent under section 33(8) of the 1979 Constitution. In other words, that his fundamental right under that section had been contravened by the Tribunal sitting in Lagos State when it convicted him of acts not constituting any offence at the time there were done. I am fully aware that the decision of that Tribunal or of the Appeal Tribunal is said to be final I do accept that fact. But it is only final in regard to the proceedings which gave rise to the appeal. The appeal finally terminated those proceedings. But that did not terminate the respondent’s entitlement to seek appropriate redress for the alleged breach of his fundamental right arising from those proceedings in a competent court. This is not unusual. In R. V. Medical Appeal Tribunal, Ex parte Gilmore (1957) 1 Q.B. 574 at p. 589, a case where certiorari was sought, Parker L.J. in considering the situation vis-à-vis application for certiorari where statute provides that the decision of a Tribunal shall be final, put it thus:

“Sometimes, as here, the statute provides that subject to a specific right of appeal the decision shall be final. In such a case it may be said that the expression ‘shall be final’ is merely a pointer to the fact that there is no further appeal, and the remedy by way of certiorari is not by way of appeal… In other cases the expression is used in the statutes when no rights of appeal are provided. In such a case it could be said that the expression was of no effect unless it was intended to oust the remedy by way of certiorari. Be that as it may, I am satisfied that such an expression is not sufficient to oust this important and well-established jurisdiction of the courts.”

Again, in R. V. Bell Liquors Ltd (1922) 2 A.C. 128 at 159-160, Lord Sumner observed:

“Long before Jervis’s Act statutes had been passed which created an inferior court, and declared its decisions to be ‘final’ and ‘without appeal’, and again and again the Court of King’s Bench had held that language of this kind did not restrict or take away the right of the court to bring proceedings before itself by certiorari.”

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