⦿ CASE SUMMARY OF:
A.G Ondo State v. A.G Federation & Ors (2002)
- ICPC Act;
- Power of National Assembly and State House of Assembly to make laws;
Attorney-General Of Ondo State
Attorney-General of Federation and other 35 states
(2002) 9 NWLR (Pt.772) 222;
(2002) 6 S.C (Pt.I) 1;
⦿LEAD JUDGEMENT DELIVERED BY:
Muhammadu Lawal Uwais, CJN
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
- Chief F.R.A Williams, SAN
FOR THE RESPONDENT
- Chief Kumuyi. Ag. Director of Civil Litigation.
⦿ AMICI CURIAE
B. O. Nwabueze, SAN;
Chief Afe Babalola, SAN;
Olisa Agbakoba, SAN.
The claims of the plaintiff are based upon the fact that the Corrupt Practices and Other Related Offences Act 2000, No.4 of 2000 (hereinafter referred to as “the Act”) contains provisions concerning several matters, including punishable offences that will apply in Ondo State, with respect to which it is the House of Assembly of Ondo State that is vested with the powers to make laws and not the National Assembly. The explanatory memorandum at the end of the act, which reads as follows “The act seeks to prohibit and prescribe punishment for Corrupt Practices and Other Related Offences. It establishes an Independent Corrupt Practices and Other Related Offences Commission vesting it with the responsibility for investigation and prosecution of offenders thereof. Provision has also been made for the protection of anybody who gives information to the commission in respect of an offence committed or likely to be committed by any other person.”
The plaintiff’s action, as already seen, is brought to challenge the constitutionality of the act.
⦿ ISSUES, inter alia
(i) Whether the Corrupt Practices and Other Related Offences Act, 2000, is a law with respect to a matter or matters upon which the National Assembly is empowered to make laws for the peace, order and good government of Nigeria under the 1999 constitution of the Federal Republic of Nigeria.
(ii) Further and in the alternative to question (i), whether the National Assembly has power to make laws for the peace, order and good government of the Federal Republic of Nigeria with respect to the criminal offences contained in the Corrupt Practices And Other Related Offences Act, 2000.
(iii) Whether the Attorney-General of the Federation or any person authorised by the Independent Corrupt Practices And Other Related Offences Commission can lawfully initiate or authorise the initiation of criminal proceedings in any court of law in Ondo State in respect of any of the criminal offences created by any of the provisions of the said Corrupt Practices and Other Related Offences Act, 2000.
The action succeeded in part.
The Supreme Court answered issues 1 & 2 in the affirmative. In addendum, by virtue of the fact that the Court upheld issues 1 & 2, the Court upheld issue 3, that the A.G Federation can institute any criminal proceeding in Ondo State against any person or official in respect of the “Corrupt Practices and Other Related Offences Act, 2000.” On this issue 3, the Court relied on section 286 subsection (1)(b) of 1999 CFRN 1999. The Court, per Katsina-Alu, stated, “The provisions of S.174 are clear and unambiguous. It can be seen clearly that section 174 of the 1999 Constitution confers powers on the Attorney-General of the Federation to institute and undertake criminal proceedings against any person before any court of law in Nigeria.”
The Court held, inter alia:
i. That S.26(3) of the Act which provides, “the prosecution of an offence shall be concluded and judgment delivered within 90 working days of commencement of the prosecution except that the jurisdiction of the court will not be affected if good grounds exist for delay”, the Court held that this provision infringes on the principle of separation of powers, and hence unconstitutional.
ii. That S.35 of the Act which gives the ICPC “the power to arrest and detain any person, who failed to obey a summons directed to him, until the person complies with the summons”, was unconstitutional. The power of the ICPC to arrest and detain persons indefinitely, that is, until the person complies with the summons, violates the provisions of section 35 of the constitution which guarantees the fundamental right to personal liberty. The provision is therefore unconstitutional, null and void.
“Since the subject of promoting and enforcing the observance comes under the exclusive legislative list, it seems to me that the provisions of item 68 of the exclusive legislative list comes into play. Therefore, it is incidental or supplementary for the National Assembly to enact the law that will enable the ICPC to enforce the observance of the fundamental objectives and directive principles of state policy. Hence, the enactment of the act which contains provisions in respect of both the establishment and regulation of ICPC and the authority for the ICPC to enforce the observance of the provisions of section 15 subsection (5) of the constitution. To hold otherwise is to render the provisions of item 60(a) idle and leave the ICPC with no authority whatsoever. This cannot have been the intendment of the constitution.”
Item 67 under the exclusive legislative list read together with the provisions of section 4, subsection (2) provide that the National Assembly is empowered to make law for the peace, order and good government of the federation and any part thereof. It follows, therefore, that the National Assembly has the power to legislate against corruption and abuse of office even as it applies to persons not in authority under public or government office. For the aim of making law is to achieve the common good. The power of the National Assembly is not therefore residual under the constitution but might be concurrent with the powers of State House of Assembly and local government council, depending on the interpretation given to the word “state” in section 15 subsection (5) of the constitution.
It has been argued by the plaintiff that the reference to “state” in section 15 (5) can be ascertained by reference to the definition in section 318 subsection (1) of the constitution. The latter section provides that the word “when used other than in relation to one of the component parts of the federation, includes government.” The same section of the constitution has defined “government” to include the government of the federation, or of any state, or of a local government councilor, any person who exercises power or authority on its behalf.” Going by these definitions the directive under section 15 subsection (5) of the constitution will apply to all the three tiers of government, namely, the federal government, state government and local government. In that case, the power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the federal and state governments by virtue of the provisions of section 4 subsections (2), (4)(b), and (7)(c) of the constitution.
Order 3 Rule 2 (2) of the Supreme Court Rules, 1985;
Order 3 Rule 6 (1) of the Supreme Court Rules, 1985;
Second Schedule, pt. 1, item 68 of the exclusive legislative list;
Section 15 subsection (5) of the 1999 constitution;
Paragraph 2(a) of part III of the second schedule to the constitution;
S.4(5) CFRN 1999;
section 286 subsection (1)(b) of 1999 CFRN 1999;
⦿ NOTABLE DICTA
Now section 4 subsection (2) of the constitution provides that the National Assembly has the power to make laws for the peace, order and good government of the federation with respect to any matter included in the exclusive legislative list. This means that the National Assembly is empowered to legislate under item 60(a) for the purpose of establishing and regulating the ICPC for the federation. This the National Assembly has done by enacting the act. – Muhammadu Lawal Uwais, CJN
The provisions of section 13 thereof apply to “all organs of government, and all authorities and persons exercising legislative, executive or judicial powers.” The provisions do not distinguish between federal, state or local governments. – Muhammadu Lawal Uwais, CJN
Applying the blue pencil rule, sections 26 subsection (3) and 35 [of the Corrupt practices and other related offences Act] will be struck down. When this is done the rest of the act is not affected. So that the good can be severed from the bad. There is no reason therefore to justify the whole of the act being invalidated as sought by the plaintiff. – Muhammadu Lawal Uwais, CJN
Since the act is to operate throughout the federation, the Attorney-General of the Federation has power, conferred on him by section 174(1)(a) of the 1999 constitution, to institute criminal proceedings against any person before any court in Nigeria, other than a court martial, in respect of any of the offences created by the said act. – Supreme Court
Coming back home, it is abundantly clear that the intendment of the framers of the Constitution in providing that the State shall abolish all corrupt practices and abuse of power is not to use the information media only to discourage corrupt practices. It also cannot be said that only State governments and Local government are to enforce this Fundamental Objectives. How then can the Nation tackle this evil practice? The answer is clear; a criminal law has to be promulgated providing that every person shall be liable to punishment for every act or omission contrary to the Corrupt Practices etc. Act, 2000, which he shall be found guilty of committing. This is the only way the evil of corruption can be tackled nationally. – Supreme Court
It is plain that the National Assembly, in the case in hand, has enacted ICPC for the peace, order and good government of Nigeria. I do agree that sections 26(3) and 35 of the Act are unconstitutional. My Lord, the Chief Justice has identified those sections in his judgment and I agree with him entirely. But, that notwithstanding I hold the view that the Act is valid. I also agree that the Attorney-General of the Federation or any person authorised by him can lawfully initiate legal proceedings in any court of law in Ondo State in respect of any criminal offences created by any of the provisions of the Corrupt Practices and Other Related Offences Act, 2000. See section 174(1) (a) of 1999 Constitution. In conclusion, the action succeeds only in getting sections 26(3) and 35 of the Act declared unconstitutional. They are hereby struck out. I also make no order as to costs. – Supreme Court
Since the subject of promoting and enforcing the observance comes under the Exclusive Legislative List, the provisions of Item 68 read together with section 15(5) of the Constitution confer power on the National Assembly to enact the Act. – Aloysius Iyorgyer Katsina-alu, JSC