It is no longer a news that the Federal High Court (FHC) has granted an exparte order restraining the Code of Conduct Tribunal (CCT) from prosecuting Chief Justice of Nigeria, (CJN) justice Onnoghen. Opinions are divided as to whether Federal High Court has the power to make such order. I was myself shocked by the order and I immediately dismissed same in various social media platforms as ultra vires. But was I correct?
I think the simplest way of ascertaining the legality or otherwise of the Federal High Court’s decision is to first determine whether CCT is equal or inferior to FHC. If we find that CCT is a Superior Court, then the order of FHC is unconstitutional because courts of equal jurisdiction cannot exercise supervisory power over each other. But if we find that CCT is inferior, then the order of FHC is lawful.
Under our constitutional jurisprudence, the only way to determine whether a court is a Superior or inferior court is to look into the constitution. By section 6(3) of the same constitution, Only the courts established by section 6(5)(a) to (I) are the Superior Courts in Nigeria. For the avoidance of doubt section 6(3) provides thus:
“The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record” (emphasis mine)
Then what are those courts specified in section 6(5) (a) to (I)? They are: the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court; the National Industrial Court the High Court of the Federal Capital Territory, Abuja; High Court of a State; the Sharia Court of Appeal of the Federal Capital Territory, Abuja; a Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory, Abuja; and a Customary Court of Appeal of a State.
Whereas FHC is expressly listed as a Superior Court, CCB is conspicuously missing in the list. Rather it was established under a different section of the constitution, namely; Paragraph 15(1) of Part 1 of the Fifth Schedule to the constitution and Section 20(1) of the Code of Conduct Bureau and Tribunal Act. But why? Was the omission of CCB in the list a mistake? What is the implication of the word “only” in section 6(3) of the constitution? Do you even know that the paragraphs in section 6(5) of the constitution do not stop at (I)? The paragraphs are from (a) to (k). Paragraphs (j)&(k) provide thus:
(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly
This being the case, in my opinion CCT was deliberately omitted in paragraph (a) to (i) of section 6(5) of the constitution because CCT is within the contemplation of section 6(5)(j) of the constitution being a court authorized by law (the constitution) to exercise jurisdiction on matters with respect to which the National Assembly may make laws (code of conduct) therefore CCB is not intended to be Superior Court.
If the framers of the constitution had wanted to make CCT a superior court of record, they would have clearly mentioned that or simply included CCT in the courts established under section 6(5)(a) to (i) of the constitution. This is based on the rule of interpretation that the express mention of one thing is the exclusion of the other not mentioned; what is not included in a statute is not to be read into it. see MICHAEL v. ODU’A INVESTMENT COMPANY LTD (2017) LPELR-42429(CA)
Secondly, I and many others had argued before by section 246(1)(a) of the constitution, appeals from CCT go to the Court of Appeal implying that FHC and CCT are equal that is why. As logical and convincing as the argument appears, I think there is a fault in it. CCT is a tribunal in the first place and nothing more. The mere fact that it was established by the constitution and appeal from it goes to the Court of Appeal does not make it a court. Examples:
- Appeal lies against the decision of the Accountants Disciplinary Tribunal to the Court of Appeal. See section 12(5) of Nigeria’s Institute of Chartered Accountants Act.
- Appeal from Medical and Dental Practitioners Tribunal goes to Court of Appeal. See section 16(6) of the Medical and Dental Practitioners Act.
- In fact appeals from Appeal Committee of Body of Benchers go to Supreme Court, not even Court of Appeal. See Section 12(5) of the Legal Practitioners Act. There are many examples.
The mere fact that appeals from those tribunals go to Court of Appeal and even to the Supreme Court in Appeal Committee of Body of Benchers cases do not make the tribunals equal with High Courts. No matter how highly placed a tribunal is, it is inferior to the High Court and is always subject to the supervisory jurisdiction of the High Court. O am fortified by the decision of the Court of Appeal in National Electoral Commission (N.E.C) v. Nzeribe (1991) 5 NWLR (Pt 192) where wogu J.C.A. held as follows:
“A tribunal, no matter how highly clothed with power is still a tribunal and so an inferior Court and subject to the supervisory jurisdiction of a superior court of record, such as the High Court of Lagos.”
O.G. Chukkol is a student, Faculty of Law, ABU, Zaria. firstname.lastname@example.org 08032470318