By Abubakar-D.-Sani
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INTRODUCTION
Can Nigerians convicted or indicted in foreign jurisdictions be subject to penal, administrative or disciplinary sanctions or proceedings back home? Are such foreign judgements or proceedings relevant and admissible against such Nigerians in such local judicial, quasi-judicial or administrative hearings or inquiries? Can Nigerian courts, administrative, investigatory or disciplinary bodies, institutions and law enforcement agencies rely on such foreign decisions, proceedings (or evidence given therein) to indict, probe, investigate or even convict any Nigerian?
These posers might seem abstract at first blush, given that such foreign decisions, proceedings, findings and evidence have historically been received apparently with little fuss in local proceedings, usually upon compliance with the formalities of registration under the Foreign Judgements (Reciprocal Enforcement) Act, Cap. F.35 LFN 2004 and, before that, the Foreign Judgements (Reciprocal Enforcement) Act Cap. 152, LFN 1990, i.e., subject to the following conditions stipulated under the Act, viz:
- That the judgement was delivered by a superior court of record;
- That it is enforceable by a superior court of record in Nigeria;
- That it is final, definite, and conclusive;
- That it is not more than six (6) years old at the date of the application of its enforcement;
- That its subject matter is payment of a sum owed as a debt but not as a tax, fine or a penalty: and
- That there is in force a law in the country of origin of that judgement which provides that Nigerian judgements enjoy the same status in that country.
It is apparent that this regime is only applicable to civil decisions or judgements of foreign courts or tribunals. The question is: “What about criminal prosecutions and any consequent convictions?”
In terms of the criminal, administrative, disciplinary or investigatory remit of Nigerian courts, professional bodies, institutions and law enforcement agencies, I believe that Sections 60 to 62, inclusive, of the Evidence Act 2011, can shed some light and give us a sense of direction, in this regard. They provide as follows:
60: (1) A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such legal persons to any such thing, is relevant.
(2) Such judgment, order or decree is conclusive proof –
- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
- that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
- that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
- that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
61: Judgments, orders or decrees other than those mentioned in section 60 are admissible if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
62: Judgments, orders or decrees, other than those mentioned in sections 59, 60 and 61 are inadmissible unless existence of such judgment, order or decree is a fact in issue, or is admissible under some other provision of this or any other Act.
Yes, I was Indicted/Convicted by a Foreign Court or Tribunal: So, What?
It can be seen that not every finding, decision or evidence given in or by a court or tribunal is automatically relevant or admissible in subsequent judicial, quasi-judicial, administrative or disciplinary proceedings: it depends on the context or circumstances. I believe this much is clear from the foregoing provisions of the Evidence Act, which stipulate that such decisions are only admissible if they were made in respect of the following circumstances:
- Probate;
- Matrimonial;
- Admiralty; or
- Insolvency proceedings;
and which, in addition,
- confer upon or take away from any person any legal character; or which
- declares any person to be entitled to any specific thing, (not merely against a named person, but absolutely, i.e. in rem, not just in personam); and finally,
- The said judgement must be final and it must have been delivered by a court of competent jurisdiction.
Breaking down this provision, further, it can be seen that it simply refers to “court” without specifying whether it is a Nigerian or foreign court. In this regard, Section 258(1) of the Act merely defines “court” as “(including) all judges and magistrates and all persons (with the exception of administrators) legally authorised to take evidence.” Does it include a foreign court or tribunal? Assuming, without conceding, that the Evidence Act 2011 (or at least, the aforesaid provisions of Section 60-62 thereof) applies to non-Nigerian courts, I humbly submit that only judgements or orders in rem (not in personam) of such courts are affected and any other judgement, decision or proceedings are excluded. This includes, in my view, any evidence tendered or received in any such proceedings.
I humbly refer to DIKE vs. NZEKA (1986) 4 NWLR pt. 34 pg. 144 @ 157, where the Supreme Court held that identical provisions to Section 60 of the Evidence Act 2011 in the old Evidence Act 1948 was “a statutory definition and exemplification of what amounts to a judgement in rem (as it) continuously refers to any legal character’. The court held further, that, “character is what a man is. His legal character will therefore imply and mean his status”.
The foregoing is not the end of the story, however, as Section 61 of the Evidence Act 2011 goes ahead to provide that “judgements, orders or decrees other than those mentioned in Section 60 are admissible if they relate to matters of public nature relevant to the inquiry, but such judgements, orders or decrees are not conclusive proof of that which they state”. I agree with Dr. Tar Hon (‘Law of Evidence in Nigeria”, 3rd edition, page 1041) that, on the authority of DIKE vs. NZEKA, supra, it can safely be said that the requirement of this provision that such judgement or order relate to matters of public nature is satisfied, if, the judgement is clearly not in personam, but rather in rem.
A few words, then, about both phrases is apposite. The former, (i.e., a judgement in rem) is one which, as previously stated, whose focus is the legal status of a named person or thing. It is a legal action against a thing which is binding on the whole world. Examples in this regard include a decree of dissolution of marriage a decision on probate or a will or a declaration of insolvency or of title to property. On the other hand, a judgement in personam focuses on the personal legal rights and obligations between the parties to a dispute, as opposed to their status; as a legal action, its outcome is conclusive only against the parties to the suit. Examples include suits for breach of contract, and claims for damages for personal injury. Suffice it to say that even though foreign judgements of the latter kind are ostensibly admissible in Nigeria, they are however not conclusive of their contents.
I submit that this includes any antecedent facts, or evidence proffered or tendered therein by any citizen of Nigeria. By way of illustration, if a foreign tribunal or court finds that a Nigerian who testified before it lied on oath or otherwise perjured, that finding, in and of itself, cannot be the sole basis of his or her conviction for perjury before a Nigerian court or disciplinary proceedings against him or her by an administrative or professional body of his or her peers – No. There must be additional, corroborative evidence or testimony before such a verdict can be reached. This position is buttressed by Section 202 of the Evidence Act which provide that:
“A person shall not be convicted of committing perjury or for counselling or procuring the commission of perjury upon the uncorroborated testimony of one witness contradicting the oath on which perjury is assigned, unless circumstances are proved which corroborated such a witness”.
As a corollary and in the alternative foregoing, I believe that, to the extent that the legislative powers of the National Assembly can only be exercised over the geopolitical territory called the Federal Republic of Nigeria (vide Section 4(1)&(2) thereof) in respect of the subject matters expressly spelt out in Section 4(3)&(4) thereof, any purported indictment of a Nigerian by a foreign tribunal or court cannot be enforced against such a person – even if all the conditions for the registration of such a decision under the Foreign Judgements (Reciprocal Enforcement) Act as aforesaid have been satisfied or complied with. The National Assembly is fundamentally incompetent, in my view under the Constitution, to enact a law which will have the effect of validating the findings of any testimony given before a foreign court or tribunal by endorsing or being the basis of its endorsement, in the context of a judicial/ quasi-judicial or administrative/disciplinary proceedings against a Nigerian here in Nigeria.
The National Assembly simply does not possess such extra-territorial remit. For this foundational reason, I submit that the Foreign Judgements (Reciprocal Enforcement) Act while not exactly ultra vires within the narrow limits of its provisions (enforcement of civil judgements for recovery of debt) cannot apply to criminal indictments of Nigerians by foreign courts or tribunals. This is all the more, so, in my view, because under the Constitution, National Assembly lacks the power to legislate in respect of a general criminal law applicable across Nigeria: BODE GEORGE vs. FRN (2014) 5 NWLR pt. 1399 pg. 129. Beyond Abuja, the FCT, the Assembly’s power to do so is restricted to the matters in respect of which it has been expressly empowered under the Constitution under Item 68 of the Exclusive Legislative List, read along with Paragraph 2(a) & (b) of Part III of the Second Schedule thereof.
If the Assembly lacks such a power, it cannot possibly possess it in respect of matters further afield, i.e., proceedings, findings and evidence given in or delivered by foreign courts or tribunals – where they affect or were made by a citizen of Nigeria. Charity begins at home. I humbly submit that this argument applies to any non-conviction indictment – such as, for instance, allegedly false testimony proffered by a Nigerian in a foreign court or tribunal. In other words, no Nigerian professional body (in the case of the legal profession, the NBA and the Disciplinary Committee of the Body of Benchers) possesses the requisite capacity to indict any Nigerian purportedly on the basis of any findings or verdict of a foreign court or tribunal or any evidence given by him or her thereat. Their remit does not and cannot extend outside Nigeria to encompass whatever he or she did beyond our shores.
I believe that such cross-border jurisdiction is in the realm of both private and public international law, which will require trans-national consensus and legislation – provided, of course, the National Assembly possesses that power, ab initio, under the Constitution. Does it? In the case of criminal indictments, convictions or offences, I humbly submit that it does not – except in so far as it has been expressly authorised under the Constitution. It lacks a carte blanche authority to do so across the board. Any such law or power exercisable by the said bodies is only valid in Abuja and within the narrow scope and context of a specific item under the Exclusive Legislative List of Constitution, as aforesaid.
Finally, I humbly submit that whatever has been said above is applicable to law enforcement agencies such as the EFCC, ICPC, and the regular Police. While they are fee to investigate (that power has long been settled), they cannot, however, charge any person for allegedly contravening a Nigerian law, the background or antecedent facts of which occurred in a foreign country or in respect of the findings of, or testimony given before, a foreign court or tribunal.
I am not unaware that certain provisions of the Terrorism (Prevention) Act are to the contrary – but they are yet to be tested. I believe, however, that, as previously submitted, they were made pursuant to a transnational treaty or treaties which was (or were) subsequently ratified by the National Assembly under Section 12 of the Constitution, as aforesaid. If otherwise, they would obviously be unconstitutional and invalid – the relevant test being the contra proferentum rule of statutory interpretation which enjoins the strict constitution of criminal statutes (i.e., sympathetically in favour of the citizen who is charged with their contravention and against the interest of the law-maker). See OHUKA v. THE STATE (1988) 2 S.C pt. II pg. 139; UMOERA v. COP (1977) 7 S.C 12 and AFOLABI v. GOVERNOR OF OYO STATE (1985) 2 NWLR pt. 9 pg. 734 @753
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