⦿ CASE SUMMARY OF:
Chief Adebiyi Olafisoye v. Federal Republic Of Nigeria (2004) – SC
by PaulPipar
⦿ PARTIES
Chief Adebiyi Olafisoye
v.
Federal Republic Of Nigeria (2004) – SC
⦿ CITATION
(2004) LPELR-SC.316/2001;
(2004) 4 NWLR (Pt. 864)580;
(2004) 1 S.C (Pt II) 27;
⦿ COURT
Supreme Court
⦿LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief F.R.A. Williams
FOR THE COMPLAINANT
– Mrs. C.I. Onugu
Note that the Supreme Court criticised the fact that the Federal Republic of Nigeria used the words “complainant/appellant” in their brief. Niki Tobi, JSC, who gave the leading judgement emphasised, “I must say straightaway that the nomenclature is strange to Order 6 of the Supreme Court Rules in the sense that the rules do not provide for complainants/appellants brief. An originator or initiator of an appeal is an appellant and the person responding to the appeal is a respondent. Accordingly, Order 6 provides for an appellant’s brief and a responden’s brief.”; “I think the so-called complainant’s/appellant’s brief is the respondent’s brief and nothing more. I will regard the Federal Republic of Nigeria in this matter as the respondent.”
⦿ FACT
Chief Adebiyi Olafisoye is the appellant. He was charged along with three other persons before the High Court of the Federal Capital Territory on two counts under the Corrupt Practices and Other Related Offences Act, 2000. I read the counts:
COUNT I
“That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN), on or about the 16th day of November, 2000 at Abuja in the Abuja Judicial Division, conspired with one another to give as a gratification the sum of N3,500,000.00 (Three million, five hundred thousand only) to Alhaji Mika Anache, a member of the Judicial Commission of Inquiry for the Investigation of the Management of Nigeria Airways Limited and other members of the said Commission in order to induce the members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of members of the Commission and thereby committed an offence contrary to section 26(1)(c) and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT II
That you Mr. Adeyemi Omowunmi, Chief Adebiyi Olafisoye and Mr. Milton Paul Ohwovoriole (SAN) on or about the 16th day of November, 2000 at Abuja in the Abuja Judicial Division, gave as gratification the sum of N3,500,000.00 (Three million, five hundred thousand naira only) to Alhaji Mika Anache a member of the Judicial Commission of Inquiry for the investigation of the management of Nigeria Airways Limited and other members of the said Commission, in order to induce members of the Commission to show favour to Chief Adebiyi Olafisoye and his company, Fidelity Bond of Nigeria Limited in the discharge of the official duties of the members of the Commission and thereby committed an offence contrary to section 9(1)(a) and punishable under section 9(1) of the Corrupt Practices and Other Related Offences Act, 2000.”
The appellant objected to the jurisdiction of the High Court on the ground that the Corrupt Practices and Other Related Offences Act, 2000, is unconstitutional and void. The objection was overruled in a ruling delivered on 24th June, 2000.
The appellant appealed to the Court of Appeal, and the Court of Appeal, in accordance with section 295(3) CFRN 1999, referred the following questions to the Supreme Court:
(i) Whether the combined effect of the provisions of sections 4(2), 15(5), Items 60(a), 67 and 68 in Part I of the Second Schedule and section 2(a) of Part III of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999, confer powers to the National Assembly to make laws for the peace, order and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power.
(ii) In the light of the answer to Question (i), whether the National Assembly has power to enact sections 9(1)(a), 9(1), 26(1)(c) and 26(3) of the Corrupt Practices and Related Offences Act, 2000.”
⦿ ISSUE
1. Whether the Acts is intra vires or ultra vires the National Assembly under section 4 of the 1999 Constitution.
2. Whether the combined effect of the provisions of sections 4(2), 15(5), Items 60(a), 67 and 68 in Part I of the Second Schedule and section 2(a) of Part III of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999, confer powers on the National Assembly to make laws for peace, order and good government of the Federal Republic of Nigeria with respect to offences arising from, connected with or pertaining to corrupt practices and abuse of power.
2. Whether the Act impedes or interferes with a state government’s management of its affairs.
3. Whether the National Assembly has the requisite power to enact the Corrupt Practices and other Related Offences Act, 2000.
4. Whether the National Assembly has power to enact sections 9(1)(a), 9(1), 26(1)(c) and 26(3) of the Corrupt Practices and Related Offences Act, 2000.
⦿ HOLDING
1. On issue 1 & 2, the Supreme Court gave judgement in favour of the Respondent, it stated, per Niki Tobi, JSC, “it [is] clear to me from the above that the National Assembly has the constitutional legislative power to enact the ICPC Act, 2000, vide Item 60(a) of the Executive Legislative List as the item relates to section 15(5) of the Constitution. This is because the ICPC qualifies as an authority within the meaning of Item 60(a).”
3. On issue 3, the Supreme Court held, “The opening words of paragraph 2(a) are the same as the words in Item 68. By the inclusion of “offences” in paragraph 2(a) of part III of the second schedule of the CFRN 1999, it is my considered view that the paragraph, in combination with Item 68 in part I of the second schedule, confers on the National Assembly the power to make laws with respect to offences arising or pertaining to corrupt practices and abuse of power as contained in the ICPC Act.”;
4. On issue 4, the Supreme Court answered in the affirmative. Except for S.26(3) which the Court held to be unconstitutional.
⦿ REFERENCED
S. 4(1)-(5); 4(7)&(8);
Item 60, 68, Exclusive Legislative List;
S.15(5) CFRN 1999;
Paragraph 2(a) of Part III of the Second Schedule to the Constitution 1999;
⦿ NOTABLE DICTA
A repealed law no more has legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
Constitutions are named as federal, unitary and confederal, to mention the major ones. A federal government will mean what the constitution writers say it means. And this can be procured within the four walls of the constitution and the four walls only. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation’s constitution which is the fons et origo of its legal system. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
The point I am struggling to make is that there is no universal agreement as to what is federalism or a federal government. Definitions of words, including ‘federalism’ or ‘federal government’, by their nature, concept or content, are never fully accurate all the time, like a mathematical solution to a problem. Definitions are definitions because they reflect the idiosyncrasies, inclinations, prejudices, slants and emotions of the person offering them. While a definer of a word may pretend to be impartial and unbiased, the final product of his definition will, in a number of situations, be a victim of partiality and bias. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
Taken in that position, the concept of State autonomy is not after all as sacrosanct as learned Senior Advocate impresses on the court. The concept will, in appropriate situations, bow to the overall sovereignty of the federal government, a sovereignty which presents its head clearly in section 4(1)(2)(3)(4) and (5) of the Constitution in the major area of legislation. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
A community reading of Item 60(a) of part I, second schedule, and section 15(5) of the CFRN 1999 results in quite a different package, a package which no more leaves [item] 2(a), of part III, second schedule, a toothless dog which could only bark but cannot bite. In my view, by the joint reading of the two provisions, Chapter 2 becomes clearly and obviously justiciable. And if I may fall back on section 6(6)(c) of the Constitution which provided for an exception clause, it is my view that section 6(6)(c) anticipates amongst other possible provisions, the provision of Item 60(a). – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
What is the purport of Item 60(a)? It talks of establishment and regulation of authorities for the Federation or any part thereof. By the provision, the National Assembly’s legislative powers are extended beyond the Federation, as they cover “any part thereof”. This provision vindicates the law making power of the National Assembly in section 4(2)(3)(4) and (5) of the Constitution. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
An act is ultra vires the National Assembly when it is enacted outside the legislative powers of the National Assembly. Where the enactment of an act is within the legislative powers or the legislative competence of the National Assembly, such an act is intra vires the National Assembly. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
No two countries operating federal Constitution practice federalism exactly in the same way. I am yet to see two countries operating federal Constitution providing for exactly the same federal content in the Constitutions. All countries, including those operating federal Constitutions, have their peculiar provisions, which they rightly call theirs. – Niki Tobi, JSC. Olafisoye v. Federal Republic of Nigeria (2004)
