Professor Ben Nwabueze, (SAN)

Professor of law and foremost constitutional lawyer, Ben Nwabueze, SAN, is of the view that a tribunal is not a “court of law” even though it may be described as a court in the general sense of the word.

The senior advocate stated this position in a paper he presented at the Inaugural Law Conference of the Ben Nwabueze Centre for Studies in Constitutional Law & Related Subjects, held at the Nigerian Institute of International Affairs, Victoria Island, Lagos.

In the paper titled “The Code of Conduct Enshrined in the Constitution Of Nigeria And Its Crucial Importance in the Fight Against Corruption “, Nwabueze stated that a court composed of members required by law to be legal practitioners or lawyers learned and experienced in the law, who are versed in the difficult art of sifting evidence and judging the demeanour of witnesses, who are reared in the tradition of individual liberty inculcated in lawyers, which insists, rightly, that it is better for nine guilty persons to go free than for one innocent man to be punished, and who, finally, are obligated to adjudicate disputes according to law, or what is called justice according to law. This constitutes one of the essential marks of a court of law.

According to him, The Code of Conduct Tribunal (CCT), which consists of a Chairman and two other persons does not qualify to be a “Court of Law’ because whilst the Chairman must be “a person who has held or is qualified to hold office as a Judge of a superior court of record in Nigeria”, the other two members are not required to be legal practitioners or lawyers.

“It should be stated right-away that the term “court of law” is in quote to emphasise the special significance which it carries. A tribunal may well be described as a court in the general sense of the word, but that does not make it a court of law, meaning a court composed of members required by law to be legal practitioners or lawyers learned and experienced in the law, who are versed in the difficult art of sifting evidence and judging the demeanour of witnesses, who are reared in the tradition of individual liberty inculcated in lawyers, which insists, rightly, that it is better for nine guilty persons to go free than for one innocent man to be punished, and who, finally, are obligated to adjudicate disputes according to law, or what is called justice according to law. This constitutes one of the essential marks of a court of law.

“By paragraph 15(1) of the Fifth Schedule to the Constitution, the CCT consists of a Chairman and two other persons. But whilst the Chairman must be “a person who has held or is qualified to hold office as a Judge of a superior court of record in Nigeria”, the other two members are not required to be legal practitioners or lawyers; whether they are in fact lawyers or not (about which I have no information) does not really matter; what matters is that they are not required by the law of the Constitution to be legal practitioners or lawyers.

“The CCT is required to (or may) sit in a case with all its three members, including the two who are not required by law to be lawyers; all three have equal power in forming the decision of the Tribunal. It is a contradiction in terms to call by the name “court of law”, a tribunal consisting of three members, two of whom are not required by law to be legal practitioners or lawyers. Accordingly, the CCT, whether or not it can truly be regarded as a court in the general sense, does not qualify as a court of law by the definition above. As all the courts listed in section 6(5) of the Constitution consist of qualified lawyers with a prescribed minimum post-qualification experience, they qualify as court of law”, Professor Nwabueze stated.

The professor of law further stated that the Constitution prescribes a qualification as a legal practitioner and a minimum post-qualification experience as a legal practitioner for the members of the courts which it establishes and invests with criminal jurisdiction.

“If the CCT is established by the Constitution as a court of law invested with criminal jurisdiction, the Constitution cannot, consistently with the qualification it prescribes for the other courts it establishes and invests with criminal jurisdiction, require only one, the chairman, of the three members of the CCT to be a qualified legal practitioner. This compels the conclusion that the CCT is not conceived and established by the Constitution as a court of law, and is not invested with criminal jurisdiction, even if only limited criminal jurisdiction”, he added.

Also, speaking on the same topic at the event, Carol Ajie, another Constitutional and human rights lawyer formulated two issues as to Whether a criminal prosecution before the CCT is competently initiated by a Director in the Federal Ministry of Justice in the absence of an incumbent Attorney General of the Federation; and whether the Tribunal is properly constituted to try the case sitting with its Chairman and one other member.

Ajie, in her paper presentation noted that based on the duties assigned to the Attorney General of the Federation in section 174 (1) of the Constitution, it would be wrong for a Director or other officers in the Federal Ministry of Justice to exercise the AGF’s power to initiate criminal proceedings against anyone in exercise of the powers conferred on the Attorney General of the Federation by Section 174(1) & (2) Of the Constitution.

She cited the Supreme Court decisions in SARAKI v F.R.N (2016) 3 NWLR (Part 1500) page 531 at 582 para D-G where the apex court held that the Attorney-General’s power of public prosecution is not exclusive to him as any other authority or person can institute and undertake criminal prosecution without his authority.

According to Ajie, the Supreme Court relied on F.R.N v. ADEWUNMI (2007) 10 NWLR (Part 1042) 399, adding that the case was however different from the ongoing trial of Bukola Saraki because there was no Attorney General in place who gave the director or any officer of the Ministry the power to prosecute Saraki.
“Therefore where the Attorney General of the Federation has not been appointed to occupy the office of AGF, one cannot seriously argue that a Director or other officers in the Federal Ministry of Justice would exercise the AGF’s power to initiate criminal proceedings against anyone in exercise of the powers conferred on the Attorney General of the Federation by Section 174(1) & (2) Of the Constitution of the Federal Republic of Nigeria 1999. Regardless of the Law Officers Act, a subordinate and scanty piece of legislation cannot override the rich text of our constitutional provision.

“However, we must pause to ponder whether powers exercised or donated by the incumbent AG are asphyxiated when AG leaves office.

“To take care of the concerns that the administration of criminal justice would come to a complete halt as pending criminal matters would stop whenever Attorneys General exit and resume when they assume office. For the avoidance of doubt, criminal proceedings would not come to an abrupt end as pending matters authorised by the AG or AGF remain pending despite a natural person not being appointed to the office of the Attorney General”, Ajie Stated.

On the issue of whether the Tribunal is properly constituted to try the case sitting with its Chairman and one other member, Ajie stated “the ordinary dictionary defines “consist” to mean “form” “compose” “comprise”. Three is the required number to achieve harmony e.g . in the event of a tie, the third member would break the tie. Won’t he or she? Therefore the draftspersons are right in making “3” mandatory for the Tribunal to be able to sit in judgment where three (3)“consist” or “form” a Tribunal session. It is my respectful view that words should be given their ordinary meaning.

“The provisions of the Constitution being sacrosanct cannot be amended, altered or removed except by a subsequent constitutional amendment. Therefore importing the words ‘two is a quorum’ under the guise of applying the Interpretation Act where an ambiguity does not arise defeats its ordinary, natural and plain grammatical construction”, she added.

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