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Cases On Human Rights

• Volume 1
  
  Constitutional Law
  Tribunal of Inquiry Act (Decree No. 42), 1966 – Extent to which, pursuant to Section 315 of the 1999 Constitution, the Act took effect as law enacted by the National Assembly– Whether the Act related to matters with respect to which the National Assembly had power to legislate for the whole Federation - Fawehimi v. Babangida

CHIEF GANI FAWEHINMI
HON MR. JUSTICE CHUKWUDIFU OPUTA (RTD)
HUMAN RIGHTS VIOLATIONS INVESTIGATION COMMISSION
v.
GENERAL IBRAHIM BABANGIDA (RTD)
BRIGADIER-GENERAL A.K. TOGUN (RTD)
BRIGADIER-GENERAL HALILU AKILU (RTD)

SUPREME COURT (NIGERIA)

 

Held (Unanimously allowing the Appeal in Part):
The Court of Appeal was wrong to have gone beyond question 1 to hold that the President needed to bring the Act into conformity with the 1999 Constitution. The Tribunal of Inquiry Act became existing law under the 1999 Constitution pursuant to section 315

thereof, but the Constitution does not confer powers on the National Assembly to enact a general law on tribunals of inquiry as neither the Exclusive or Concurrent Legislative lists include tribunals of inquiry as a legislative item, quite unlike the 1963 Constitution under which tribunals of inquiry was a specific item under the Exclusive Legislative List. It follows that tribunals of inquiry falls within the residual powers of both the National Assembly (for the Federal Capital Territory) and State Houses of Assembly for their respective States. The Tribunal of Inquiry Act of 1966 therefore took effect under the 1999 Constitution as an Act of the National Assembly for the Federal Capital Territory, Abuja only and a Law of the State House of Assembly under the residual powers of both legislatures. On question 2, the Court of Appeal rightly held that Sections 5(d) 11(1) (b), 11 (4) and 12(2) of the Tribunals of Inquiry Act are unconstitutional and invalid in so far as they empower a tribunal of inquiry to compel attendance or impose a sentence of fine or imprisonment. The sections contravene sections 35 and 36 of the Constitution of Nigeria 1999. Under the Constitution, only a court of law can make an order to deprive a citizen of his Fundamental Rights to Personal Liberty. The Court of Appeal was however wrong to declare sections 5(c), 10 and 11(3) of the Act unconstitutional and invalid.

Details of Principles in the Judgment

1. On Legislative Powers of the National Assembly viz a viz the Tribunal of Inquiry Act
The National Assembly when exercising its legislative powers is limited by the powers granted to it by the Constitution. Unlike the 1963 Constitution, the 1999 Constitution does not confer powers on the National Assembly to make laws of a general nature with regards to Tribunals of Inquiry, to have effect throughout the federation. The power to enact such a law has become a residual matter under which the National Assembly may only enact law to constitute a Tribunal of Inquiry for the Federal Capital territory, and the State House of Assembly for the State. [Page 24 Paras C-E].

On the Record: Per Uwaifo JSC
“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 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 authorized 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 .... . As the Federal Capital Territory 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.” [page 24 paras A-H]

Per Ejiwunmi JSC (concurring)
“…the National Assembly in its exercise of its legislative powers is limited by the provisions of the Constitution as the Constitution of 1999 did not make provision for the Tribunals of Inquiry as clearly shown in item 39 of the Exclusive List [of the 1963 Constitution]. In the absence of such provision, the National Assembly cannot pass a general law on Tribunals of Inquiry to affect the entire Federation. However, the National Assembly can pass such law with regard to the Federal Capital Territory. It remains to be said that under the 1999 Constitution, the establishment of Tribunals of Inquiry is now a residual matter, which only the States can promulgate.” [page 62 paras G-I]

2. Compulsive Powers of Tribunals of Inquiry: Whether Constitutional
Sections 5(d) 11 (b), 11 (4) and 12 (2) of the Tribunals of Inquiry Act, under which a tribunal of inquiry may compel witnesses to testify and produce documents and impose a sentence of fine or imprisonment are void being in contravention of sections 35 and 36 of the Constitution of Nigeria 1999. Only duly constituted courts of justice may impose a sentence of fine or imprisonment.[page 30 paras D-E]

On the Record: Per Ejiwunmi, JSC (concurring)
“… I must hold that the provisions of sections 5(c), 5(d) 10 and 11(3) of the Act which do not offend the provisions of Sections 35 and 36 of the Constitution are valid to the extent that they apply to the Federal Territory only. … The Court of Appeal was right in holding that sections 5(d) 11(1)(b), 11(4) and 12(2) are unconstitutional and invalid in so far as they purport to empower the Tribunal of Inquiry to impose a sentence of fine or imprisonment which is a power in contravention of and not in conformity with sections 35 subsection (1) (a) and 36 subsection (1) of the Constitution….” [page 63 paras H-I, page 64 paras A-C]

Per Onu, JSC (concurring)
“It is worthy of note that the 1999 Constitution has made no provision for Tribunals of Inquiry as was very clear in item 39 of the Exclusive List and item 25 of the Concurrent List in the 1963 Constitution. Be it however, noted that the decision in Balewa v. Doherty based on the 1960 Constitution is a guidance to the fact that Regional (now state) legislature could legislate on matters not directly specified as an item in either the Exclusive or Concurrent Legislative List. Also it shows that there can be no giving of compulsive powers to the Commissions of Inquiries, for instance, to impose a sentence of fine or imprisonment in conflict with a constitutional provision which gives such powers to the Courts, as such will be invalid.” [page 49 paras H-I, page 50 paras A-B]

Nigerian Cases Referred to in the Judgment:
1. Adisa v. Oyinwola (2000) 10 NWLR (Pt. 647) 116
2. A.G. Abia State v. Attorney General of Federation (2002) 6 NWLR (Pt. 763) 263
3. Attorney-General of Benue State v. Ogwu (1983) 4 NCLR 213
4. Attorney-General Imo State v. Attorney-General Rivers State (1983) 8 SC 10
5. Attorney-General of Lagos State v. Dosunmu (1989) ANLR (reprint) 504
6. Bamaiyi v. Attorney-General of the Federation (2001) 12 NWLR (Pt. 727) 468
7. Balewa v. Doherty (1963) 2 SCNLR 155
8. Din v. Attorney-General Federation (1988) 4 NWLR (Pt. 87) 147
9. Doherty v. Balewa (1961) 2 SCNLR 256
10. Governor of Kaduna State v. Kagoma (1892) 3 NCLR 1092
11. Ikine v. Edjerode (2001) 18 NWLR (Pt 745) 446

Nigerian Laws Referred to in the Judgement:
1. Constitution of the Federal Republic of Nigeria 1999, Section 42
2. Tribunals of Inquiry Act 1966, CAP 447 Laws of the Federation of Nigeria 1990

Representation:
1. O. Oyetibo Esq., (with him G. Ogokeh Esq.,) for the 3rd Defendant/Appellant
2. M.I.N. Duru Esq (DPP Federation) for the 1st and 2nd Defendants/Appellants
3. Chief Chris Uche (with him C.A.C. Nnadi Esq., A. Dimonye Esq and G.M. Obey Esq.,) for the Plaintiffs/Respondents

UWAIFO, JSC (Delivering the Leading Judgment): 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 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 1996, 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 Fawhinimi – 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 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 of functions claimed to be conferred upon it pursuant to the Tribunal of Inquiries Act, Cap. 447, Laws of the Federation of Nigeria of 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 question1, 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 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 Fawhinmi (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), 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 315 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 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 authorized 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 naria 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 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. I 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 effects 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. 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 textual 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 correct in deciding that in the absence of necessary modification or textual 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 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) 8 SC 10; Din v. Attorney-General Federation (1988) 4 NWLR (Pt.87) 147; Attorney-General Lagos State v. Dosunmu (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 de jure 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:

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