The Constitutional Validity Of Section 3(D) Of The Code Of Conduct Bureau And Tribunal Act Part 3: Critical Review Of CA Judment In Saraki V FRN By Nonso Robert Attoh

“Whether notification of the Appellant by the Code of Conduct Bureau of any discrepancies or inconsistencies or anomalies in his asset declaration is a condition precedent to the institution of any action against him if so whether the failure to notify him was fatal? “Whether section 3(d) of the Code of Conduct Bureau and Tribunal Act is constitutional and if so whether the Tribunal erred in law when it refused to follow its earlier decision in FRN v. Bola Ahmed Tinubu on the ground that the said section 3(d) is inconsistent with the Constitution and therefore null and void RATIO I (pages 63-65 of the judgment) “Upon a close and comparative reading of Section 3(d) of the Code of Conduct Bureau and Tribunal Act and paragraph 3(a), (b), (c), (d) and (e) of the Third Schedule to the Constitution, it is quite obvious that the provisions of the Constitution is clear and unambiguous. While section 3 of Code of Conduct Bureau and Tribunal Act feebly said: “The function of the Bureau shall be to receive complaints…” Paragraph 3 of the Third Schedule begins in commanding tone thus” “The Bureau shall have power to:-

• Receive declarations….

This is all encompassing and I am certain in my mind that proviso to Section 3(d) of CCBT Act cannot operate to cut down or whittle down the clear provisions of Third Schedule of 1999 Constitution which gives power to the Bureau and Code of Conduct Tribunal. The 1999 Constitution did not give any room for subversion of the provisions relating to Code of Conduct for Public Officers It is also clear that while section 3(d) of Code of Conduct Bureau and Tribunal Act gives to the Bureau functions to receive complaints only in respect of non-compliance or breach of the Act, paragraph 3(e) of the Third Schedule to the Constitution empowered the Bureau to investigate the complaint and refer any matter of investigation appropriately to the Tribunal. COMMENT The CA in sustaining the decision of the CCT invalidating section 3(d) CCBT Act, hinged its decision on the fact that the Constitutional provision empowering the CCB to refer complaints to the CCT is all encompassing and that the impugned section of the CCBT Act whittles down the clear provisions of the 1999 Constitution which confers power on the CCB and CCT. It also concluded that the impugned section subverts the constitutional provisions relating to the Code of Conduct for Public Officers. This is indirectly stating that the impugned section is both indirectly inconsistent under the “covering the field” test and also directly inconsistent under the “conferral of rights” test. (The three tests of “simultaneous obedience” test, “conferral of rights” test and “covering the field” test, were formulated in the Australian Courts to deal with questions of inconsistency between Commonwealth law and Australian Law under section 109 of the Australian Constitution and have been applied by the Nigerian Supreme Court in issues of inconsistency) The choice of words used in the CCBT Act can be explained by considering that the Constitution in paragraph 3(g) of the Third Schedule Part 1, reserved a power to the NA to confer further functions on the CCB. It was therefore appropriate to use the word “function”, instead of “power”, even though the interpretation section of the 1999 Constitution had made it clear that the word “function” includes powers and duties. The CA did not demonstrate clearly how the constitutional provisions were all encompassing, especially as it failed to observe that the power conferred on the CCB is a discretionary power. The discretionary power conferred on the CCB with the phrase “where appropriate”, cannot be said to be all encompassing, exhaustive and complete, but being discretionary leaves it open to the NA to define where it is appropriate to refer such a complaint and where it is not appropriate to do so, especially where the NA considers that it is necessary to do so to avoid abuse of such a discretionary power. Thus, defining “where appropriate” as “where the Bureau considers it necessary”, with the proviso that it is not necessary to refer once there is written admission, does not whittle down the nebulous discretionary power, but rather provides a guideline for the CCB in exercising the power. It also does not subvert the constitutional provisions relating to the Code of Conduct for Public Officers, except if it is given the restrictive literal meaning adopted by the Tribunal and CA. This is without prejudice to the stark reality that there is a lacuna in the proviso. What should have been in issue therefore is the question of the correct interpretation that will be given to the proviso to ensure that it conforms with the legislative intention for promulgating the Code of Conduct for Public Officers. One of the preliminary tests for invalidating a statute on the grounds of covering the filed, is that the provision is the same or similar to the constitutional provision, therefore the CCBT Act in omitting the power or duty to investigate which is contained in the Constitution, demonstrates further that the NA was not duplicating or repeating the provisions of the Constitution but was defining in broad terms when it is inappropriate to refer complaints to the CCT. RATIO II (page 65 of the judgment) “No proviso was created for any Public Officer to make admission and be set free. It will be outlandish and absurd to allow such awkwardness in the interpretation of the clear provisions of the 1999 Constitution and the CCBT Act. The power to prosecute offences under the Constitution the 3^rd Schedule and Fifth Schedule to 1999 Constitution as amended can be found also in section 24 of the Code of Conduct Bureau and Tribunal Act and section 174 of the Constitution….” COMMENT An examination of section 3(d) of the 1999 Constitution reveals that the section does not say anything about a Public Officer being set free on his making a written admission of non-compliance/breach of the asset declaration requirements of the Code of Conduct for Public Officers. Rather, it simply states that such a written admission renders it unnecessary to refer the complaint to the CCT. Thus, the interpretation of this proviso by the CA is importing a seemingly logical meaning into the proviso which could not have been the intention of the legislators. This interpretation highlights the lacuna in the proviso. The lacuna is that even though the proviso makes it unnecessary to refer a complaint to the CCT when the public officer concerned has admitted the breach in writing, it does not go ahead to legislate on what the CCB should do thereafter. The NA surely would not have intended that a deliberate defaulter can get away by simply making an admission. They failed to specify what should be done if the admission reveals a genuine reason for the breach and what should be done when the admission reveals mala fide or a criminal intention or conflict of interest. One of the botched amendments of the CCBT Act by the NA attempted to resolve this issue, but we will discuss this when we discuss the possible resolution of this dilemma in the next part.  Suffice it to say that the interpretation of this proviso literally as the CA and the CCT did, imputes an meaning/intention into the proviso, which the NA never contemplated RATIO III. (page 66 -67 of the judgment) “The powers given to Code of Conduct Bureau to make referral to the Code of Conduct Tribunal Concerning a Public Officer who breaches Code of Conduct IS NOT AT ALL CONTINGENT UPON the making or non-making of a written admission by any Public Officer. “The proviso relied upon by Appellant is a slippery ground. It cannot stand side by side with provisions of paragraph 3(d) and 3(e) of the Third Schedule to the Constitution. The said Constitution having expressly established the constitutional powers of the Bureau and at the same time bestow power to investigate upon the Bureau all the added and unsolicited burden contained in the proviso to section 3(d) of CCBT Act cannot stand. They have been expressly excluded under Latin Maxim of “expessio unis est exclusion alterius alerius”. See 1. Mahmud Shinkafi  & Anor vs Abdullazeezyari & Ors (2016) 3SCM 135 at 158 per Okoro, JSC who said” “Thus, the Constitution as the grundnorm (supreme law of the land), HAVING MADE SUCH ELABORATE AND ALL ENCOMPASSING PROVISIONS for qualification and disqualification of persons seeking the office of Governor of a state does not leave room for any addition to those conditions already set out…. Even assuming that it has, by reason of its being subordinate to the Constitution, it cannot override, add to or supplant the express and exhaustive positions on the subject matter of qualification and disqualification for election into office of Governor of a State. The Latin Maxim “expression unis est exclusion alterius” meaning: “the express mention of one excludes any other which otherwise would have applied by implication with regard to the same issue” applies. See PDP V. INEC (supra) …” COMMENT This reasoning is based on the conclusion that the impugned section is unconstitutional and invalid. The CA did not demonstrate clearly why the proviso cannot stand side by side with the Constitutional provisions. It considered the restriction of the power to refer complaints to the CCT as an unsolicited burden, without considering that the NA has the power to restrict the exercise of discretionary power as far as the restriction does not go contrary to the Constitutional intentions (see part 2). Finally, it anchored its exclusion of the proviso on the Latin maxim expessio unis est exclusion alterius alerius without considering that the decision it relied on for this conclusion, envisages that for this maxim to apply the constitutional provision must be elaborate and all-encompassing and must constitute an express and exhaustive position on the subject matter under consideration. Unfortunately, the grant of the discretionary power in this case is not exhaustive, elaborate or all-encompassing as already demonstrated in part 1 of this opinion. This, therefore, casts some doubt on this ratio. RATIO IV. (page 68 and 69, 71 of the judgment) “The alleged or proven evidence that the Appellant was not afforded opportunity to make a written admission pursuant to section 3(a) and (d) of Code of Conduct Bureau and Tribunal Act is not a condition precedent for adjudication by Code of Conduct Tribunal. It is not an issue of jurisdiction. It is not relevant as the provisions of the Third and Fifth Schedules to the Constitution particularly paragraph 3 of 3^rd Schedule and paragraphs 12 and 18 of the Fifth Schedule actually render the provision of Section 3(b) and (d) of Code of Conduct Bureau and Tribunal Act inoperative and otiose. The said provisions cannot impede or obstruct clear provisions of the Constitution as stipulated in this judgment. Section 3(d) of the Code of Conduct Bureau and Tribunal is no doubt moribund and I have no doubt in my mind that the lower Tribunal was right in striking it down in view of the provision of Section 1(3) of the 1999 Constitution as amended. The provision of section 3(d) of Code of Conduct Bureau and Tribunal Act is void and of no effect. The provision of Section 3(d) of CCBT cannot create a clog in the way of prosecution of alleged offenders under the Code of Conduct for Public Officers. It is not a condition precedent to the presentation of a charge.” …. “… it is not a proviso to a law, that confers or bestows jurisdiction on a Court. It is the Nigerian Constitution of 1999 as amended and Sections 20 – 26 of the Code of Conduct Bureau and Tribunal Act that endowed or clothed the lower Tribunal with jurisdiction. It is also out of place to contend that failure of a defendant to make written admission deprives a Court or Tribunal jurisdiction to entertain a criminal matter placed before it.” COMMENT Here the Court accepted that there was an inconsistency between the impugned section and the Constitution and thus invoked section 1(3) 1999 Constitution to hold it as void and of no effect. It further considered the impugned section as a clog in the way of prosecution of alleged offenders. However, with all due respect to the Court, if the Court had adverted its mind to the discretionary nature of the power conferred on the CCB and analytically applied either the test of indirect inconsistency of ‘covering the field” or the tests of direct inconsistency of “conferral of rights’ and “simultaneous obedience” test, it may have come to a different conclusion on the question of inconsistency. (see part 1) Also, the section can only be said to constitute a clog to prosecution of alleged offenders, if it is given the restricted interpretation adopted by the CCT and the CA. The function of the proviso here is basically to provide a ground for checking any excess of the CCB and especially where it purports to take into considerations irrelevant factors in coming to its decision to refer, the court is open to the aggrieved party who is being arraigned without following the laid down procedure, to seek a judicial review of the lawfulness of such exercise of discretion. It can therefore be said that failure to give an affected public officer the chance to deny or admit the allegations and offer clarifications as to the alleged breach, indirectly affects the jurisdiction of the Tribunal as it provides a ground for judicial review of the decision of the CCB to refer the complaint to the CCT. It may not be a basis for assumption of jurisdiction by the CCT in all cases of breach of the Code of Conduct for Public Officers, but it is a ground for questioning the decision of the CCB to refer a case to the CCT in respect of the Asset Declaration requirements of the Code. RATIO V (pages 83, 85, 86 of the judgment) “Section 3 (d) of CCBT Act which to me is a general law or enacting clause that cannot curtail the express provision of powers given to the Code of Conduct Bureau and the Attorney-General of the Federation to prosecute offenders pursuant to the provisions of 1999 Constitution and Code of Conduct Bureau and Tribunal Act. Section 3(d) of the Act cannot stand side by side with the provisions of sections 20 -26 of Code of Conduct Bureau and Tribunal Act bearing in mind the express and unambiguous provisions of 3^rd and 5^th Schedules to 1999 Constitution, that is not the intention of the law and the 1999 Constitution. see 1. Ocholi Enojo James, SAN vs INEC & Ors (2015) 12 NWLR (Part 1474) 538 at 588 E -G Per Kekere-Ekun, JSC … 2. Ozonma (Barr) Chidi Nobis-Elendu v. INEC & Ors (2015) 6 SCM 117 at 137 where Musa Datijo Muhammad JSC said: “The applicable principle in the present circumstances where a specific provision of the statute is subsequent to a general provision, the specific provision prevails in the event of any conflict between the two… The Constitution has effectively covered the field concerning initiation of criminal prosecution before Code of Conduct Tribunal against Public Officers that may be found to have breached the provisions of Code of Conduct for Public officers. The same is true of Section 20-25 of Code of Conduct Bureau and Tribunal Act.” COMMENT In coming to its conclusion that the Constitution has covered the field, the CA did not demonstrate that the two provisions were the same or similar and its conclusion that the constitutional provision was all encompassing failed to consider the implications of the power under consideration being a discretionary power. It did not consider any other possible interpretation of the provisions especially since the literal meaning they adopted was clearly in conflict with the legislative intention for promulgating the Code of Conduct for Public Officers. Thus, the CA, with all respect, by fixating on only one interpretation of the impugned section, seems to have neglected the counsel of Kekere-Ekun J.S.C in the same case (which it relied on) of Ocholi Enojo James, SAN vs INEC & Ors (2015) 12 NWLR (Part 1474) 538 at 588 E -G that the Court should not “…construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends” As to the issue of general and special provisions, it is questionable whether it is the constitution or the CCBT Act that is the special provision. This doubt is borne out by the decision of  the West African Court of Appeal in Bamgboye v. Administrator-General (1954) 14 WACA 616, per Bairamian, J. that “It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; ‘the general provision does not apply”. The Court of Appeal relying on the above dictum as well as the decision of the Supreme Court in Federal Mortgage Bank of Nigeria v. Onoh (2002) FWLR (Pt 107) 1244, decided in the case of Chairman Moro Local Government & Ors V. Adelodun Lawal & Ors CA/IL/49/2005, that, “Consistent with the finding of the Supreme Court on this, IT WILL BE FALLACIOUS TO CONTEND THAT THE TWO PROVISIONS ARE INCONSISTENT. Instead, Section 178 of the Local Government Law is a special provision providing for a specific body(ies), while Section 18 of the Limitation Law is a general provision which provides for all other situations. It is therefore my finding on this score that Section 178 of the Local Government Law, Cap 92 Laws of Kwara State is extant, existing and applicable to this case. Based on the above, one may assert that the CCBT Act is a special provision, while the Constitution is a general provision, and as such the CCBT Act will prevail, since it is not inconsistent with the Constitution. RATIO VI “Section 3(d) of the same Act cannot impede or stand in the way of the rest of the sections contained in CCBT Act and most importantly the express provisions of the Constitution contained in paragraph 3(d) and 3(e) of the Third Schedule to the same Constitution having regard to Section 1(3) of the 1999 Constitution as amended and Code of Conduct Bureau and Tribunal Act. See MPPP vs INEC & Ors (2015) 10 SCM 89 at 110 H – 111 A Per I.T Muhammad, JSC who said… There is nothing in section 3(d) of the CCBT Act making it mandatory for the Code of Conduct Bureau to give any type of pre-action notice to appellant or making it compulsory for Code of Conduct Bureau to invite any Public officer including Appellant to make a written statement admitting or denying the allegation against him. An Accused person or Defendant is entitled to reserve his statement until when he gives evidence in his own defence (if he so chooses) at the trial. The 1999 Constitution of the Federal Republic of Nigeria as amended section 36 (11) thereof and under section 6 of the Criminal Justice Act. The lower Tribunal was right in adjudging Section 3(d) of the CCBT Act to be invalid and inoperative.” COMMENT Section 3(d) does not actually impede or stand in the way of the rest of the sections contained in the CCB Act nor the Constitution and there is no inconsistency as to warrant an invocation of section 1(3). Rather it seeks to provide a criterium which the CCB must consider before referring a matter to the CCT. Unlike the decision of the SC relied upon by the CA in MPPP vs INEC & Ors (2015) 10 SCM 89 at 110, the principal or superior law which in this case is the Constitution has not covered the field in respect of the power to refer matters to the CCT, since this power is a discretionary one delineated by the use of the phrase “where appropriate”. (See part 1) Since such a power is discretionary the NA is empowered by the Constitution to define its limit or provide legislative guidelines for its exercise (see part 2). Section 3(d) is not inconsistent whether on the test of “covering the field” or “conferral of rights” test or “impossibility of obedience test”. Considering that section as an impedance reveals a fixation on arraignment and trial at the CCT as the only way of ensuring compliance with the Code of Conduct. The mandatory nature of the section is that failure to comply with it will lead to a challenge of the decision of the CCB to refer to the CCT on the grounds of judicial review. We are however, in full agreement with the erudite judges that this proviso does not envisage any pre-action notice CONCLUSION This critical review suggests that the decision of the CA in Saraki’s case was affected by the failure of the judges to properly demonstrate that the Constitution had intended to cover the field in relation to the power of the CCB to refer complaints to the CCT. This failure is apparent by the failure of the Court to advert its mind to the discretionary nature of the power conferred on the CCB to refer complaints to the CCT. The decision of the CA invalidating section 3(d) of the CCBT Act, being based on the fact that the Constitution had covered the field, it is apparent that if the Supreme Court comes to the conclusion that the constitution did not cover the field, this will surely displace the entire reasoning of the Court. That being the case, the question will remain as to the correct interpretation to be given to this section seeing that the literal interpretation adopted by the CCT and the CA will defeat the legislative intention of enacting the Code of Conduct for Public Officers. This will be attempted in the final part of this opinion. However, the decision of the CA, remains the extant law on this issue and as such section 3(d) of the CCBT Act is invalid, according to the decision of the CA in Saraki v. FRN. Nonso Robert Attoh is a law lecturer and writes from Enugu.]]>