The exparte order granted by Justice N.E Maha of the Federal High Court Abuja restraining the Code of Conduct Tribunal from prosecuting CJN is currently raising a lot of dust, eliciting mixed views among lawyers.
Some see it as victory for rule of law, arguing that Federal High Court is a Superior Court by virtue of section 6 of the 1999 Constitution whereas the CCT is not. Some others feel the FHC has acted ultra vires in that the CCT is a coordinate court with the FHC. I believe the former school of thought is right; the Code of Conduct Tribunal is not mentioned in section 6(5) of the constitution and legally speaking only the courts established by section 6(5) are Superior Courts of Record. 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”
If the framers of the constitution had wanted to make CCT a superior court of record, they would have clearly mentioned that or simply listed CCT among the courts established under section 6(5) of the constitution. This is based on the rule of interpretation restated in COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR v. ONAKADE (2016) LPELR-41133(CA) thus:
“In the interpretation of statutes, what is not expressed is excluded. Expressio unius est exclusio alterius – 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.” Per OKORONKWO, J.C.A. (P. 16, Paras. A-B).
This clarification is important because all the superior courts of record (excluding Supreme Court and Court of Appeal) are courts of equal jurisdiction see CUSTOMARY COURT OF APPEAL EDO STATE v. AGUELE & ORS (2017) LPELR-44632(SC). Therefore any other court established outside section 6(5) of the constitution is inferior to the High Court (whether Federal or state). See section 6(4) of the constitution which empowers National and State Houses of Assembly to establish courts but to the extent only that such courts shall be subordinate to the High Court.
Having established that CCT is not a superior court of record, FHC has the inherent vires to exercise supervisory jurisdiction over CCT when invited to do so by an aggrieved party, unless there is an express statutory or constitutional provision to the contrary.
In Nwaogwugwu v. President F.R.N. 2007) 6 NWLR (Pt.1030) 237 C.A., judicial review was said to be “a special procedure through which public bodies or tribunals exercising quasi-judicial or judicial functions are subject to the supervisory jurisdiction of superior courts.‟
Also in African Continental Bank Plc. v. Nwaigwe (2011) 7 NWLR 380 the court defined judicial review as “the supervisory jurisdiction of the High Court is exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies.”
This aside, one other question still begs for answer. Is the CCT a regular court? My answer is that it is not a regular court but merely a tribunal accorded recognition by the constitution with special jurisdiction. So it would be an error to equate it with a regular court in the first place.
DOES the fact that appeal from the CCT goes to the COURT OF APPEAL place CCT on the same pedestal with the FHC?
The answer, respectfully, is no. Appeals from CCT to Court of Appeal operates within certain limit. A careful perusal of section 246(1)(a) of the constitution together with Paragraph 18(4) and (5) of Part 1 of the Fifth Schedule thereto and Section 23 (4) & (5) of the Code of Conduct Bureau and Tribunal Aact shows that an appeal lies as of right from a decision of the CCT in only two instances, to wit:
• Determination of the guilty or otherwise contravening any of the provisions of the Code of Conduct Bureau and Tribunal Act (CCBTA); and
• Punishment imposed on a public officer found guilty of contravention of the Code of Conduct Bureau and Tribunal Act.
Any right of appeal to the Court of Appeal from the decisions of the CCT shall be exercised in accordance with the CCBTA and the rules of court for the time being in force, regulating the powers, practice and procedure of the Court of Appeal. The implication of the foregoing is that apart from those two instances mentioned under the CCBTA and the Constitution, an appeal shall not lie as of right to the Court of Appeal from decisions of the CCT. But unfortunately, neither the Fifth Schedule to the Constitution nor the CCBTA has made any provision for instances when an appeal can lie with leave to the Court of Appeal.
Assuming (but not conceding) that appeals can go in all circumstances from CCT to Court of Appeal, it cannot still be a justifiable ground to equate it with the FHC, except we are ready to accept other odd situations where tribunals like Appeal Committee of Body of Benchers equating itself with Federal High if not even claiming superiority simply because an appeal from it goes to the Supreme Court, and not even Court of Appeal.
Okeke Ifeanyi from USA forTheNigeriaLawyer