⦿ CASE SUMMARY OF:
Chief Gani Fawehinmi & Ors v. General Ibrahim Babangida (Rtd.) & Ors (2003) – SC
– Existing Law;
– Tribunals of enquiry Act;
– National Assembly;
1. Chief Gani Fawehinmi
2. Hon. Mr. Justice Chukwudifu Oputa (RTD.)
3. Human Rights Violations Investigation Commission
1. General Ibrahim Babangida (RTD.)
2. Brigadier-general A. K. Togun (RTD.)
3. Brigadier-general Halilu Akilu (RTD.)
(2003) 3 NWLR (Pt.808) 604;
(2003) 12 WRN 1 SC;
(2003) 12 WRN 1 SC;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Oyetibo;
* FOR THE RESPONDENT
– Chief Uche;
– Mr. Duty;
⦿ FACT (as relating to the issues)
The President of the Federal Republic of Nigeria constituted a Judicial Commission of Inquiry (the Commission) for the investigation of human rights violation in Nigeria. It was by a Statutory Instrument No.8 of 1999 (later amended by a Statutory Instrument No. 13 of 1999) which states that it was made by Mr. President in exercise of the powers conferred on him by section 1 of the Tribunals of Inquiry Act, 1966, now to be found in Cap. 447, Laws of the Federation of Nigeria 1990, (the Act) and of “all other powers” enabling him in that behalf.
The Commission was composed of eight members under the Chairmanship of the Honourable Justice Chukwudifu Oputa, JSC (Rtd.) who was made the 1st defendant to the two actions brought to contest the validity of the Act and certain actions taken by the Commission. The appellant in one of the appeals Chief Gani Fawehinmi was, upon application by him, joined as the 3rd defendant in the actions.
The Commission was given terms of reference which were that it shall – “(a) ascertain or establish the causes, nature and extent of human rights violations or abuses with particular reference to all known or suspected cases of mysterious deaths and assassinations or attempted assassinations committed in Nigeria between the 1st day of January 1984 and the 28th of May, 1999; (b) Identify the person or persons, authorities, institutions or organizations which may be held accountable for such mysterious deaths, assassinations or attempted assassinations or other violations or abuses of human rights and determine the motives of the violations or abuses, the victims and circumstances thereof and the effect on such victims or the society generally of the atrocities; (c) Determine whether such abuses or violations were the product of deliberate State policy or the policy of any of its organs or institutions or whether they arose from abuses by State officials of their office or whether they were the acts of any political organisations, liberation movements or other groups or individuals; (d) Recommend measures which may be taken whether judicial, administrative, legislative or institutional to redress the injustices of the past and prevent or forestall future violations or abuses of human rights; (e) Make any other recommendations which are, in the opinion of the Judicial Commission, in the public interest and are necessitated by the evidence.”
In the course of the inquiry, the Commission issued summons for service on persons to testify as witnesses, among whom were the plaintiffs. The plaintiffs resisted being compelled to attend as witnesses. They proceeded to court instead. In the originating summons by one of them Brig. General A.K. Togun (Rtd) he stated his claim as follows:
(i) A declaration that the Tribunals of Inquiry Act, 1966 No. 41 is not an enactment on any matter with respect to which the National Assembly is empowered to make laws under the Constitution of the Federal Republic of Nigeria, 1999, and it accordingly took effect as a law enacted by the House of Assembly of a State.
(ii) A declaration that it is not lawful for the 1st or 2nd defendant to summon the plaintiff to appear before it to testify or to produce documents.
(iii) An order of prohibition prohibiting the 1st and 2nd defendants, their servants and agents whosoever or howsoever from (a) sitting as a body empowered to exercise powers or functions claimed to be conferred upon it pursuant to the Tribunal of Inquiries Act, Cap. 447, Laws of the Federation of Nigeria or exercising any of the aforementioned powers. (b) using the powers conferred or purported to be conferred on him or them by the Tribunal of Inquiry Act, 1966, to compel the plaintiff to attend a sitting of the 2nd defendant body to answer questions or to produce documents.”
The Federal High Court sitting in Lagos, presided over by Belgore, C. J., made the reference in question to the Court of Appeal.
In the leading judgment delivered by Oguntade, JCA with which Obadina and Nzeako, JJCA concurred, the following answers were given:
“Answer to Question 1
Cap. 447 was promulgated as Decree No. 41 of 1966 by the Federal Military Government in 1966. Being an enactment of the Federal Military Government, it took effect on 28-5-99 as an existing law pursuant to section 315 of the 1999 Constitution. As such existing law, it needed to be brought into conformity with the 1999 Constitution of Nigeria by the appropriate authority, who is Mr. President. Appropriate authority has failed the plaintiffs. Only the President, as the appropriate authority can make such textual modification. Even if this court is aware of what needs to be done, the best efforts of this court would amount to no more than merely speculation. In any case, the court is without the jurisdiction to exercise a power reserved in the Constitution for only Mr. President as the appropriate authority.
Arising from my observations above in the answer to question 1, the inevitable conclusion to be arrived at in relation to question No.2 is that Sections 5(c), 10, 11(1)(b), 11(3), 11(4), and 12 (altogether collectively referred to as the compulsive powers under Cap. 447) are unconstitutional, invalid and contravene Section 35 or 36 of the Constitution of the Federal Republic of Nigeria, 1999. It only remains for me to add that the invalidity and or unconstitutionality of sections 5(c), 10, 11 (1)(b), 11(3), 11(4) and 12 of Cap. 447 arises from the fact that as the said provisions were made in excess of the Legislative competence of the National Assembly, they could not be relied upon as a basis to supplant or infract the rights enshrined in section 35 or 36 of the 1999 Constitution of the Federal Republic of Nigeria.” (Note: Section 5(d) was inadvertently omitted.)
1. Whether the Court of Appeal did not in its judgment go beyond the answer required for the first question referred to it by the Federal High Court.
2. Assuming (but without conceding) that the answer provided by the Court of Appeal to the first question was not excessive, whether the said answer is accurate enough to meet the requirements of section 295(2) of the 1999 Constitution.
3. Whether the Court of Appeal was right in holding that sections 5(c), 10, 11(1)(b), 11(3), 11(4) and 12 of the Tribunals of Inquiry Act contravene section 35 or 36 of the 1999 Constitution and therefore are unconstitutional and invalid.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: IN PART]
1. ISSUE 1 was resolved in favour of the Appellant.
i. The Court of Appeal went beyond the answer required for the first question referred to it by the Federal High Court. I would give the answer to the question from what I have considered above as follows: The Tribunals of Inquiry Act, 1966 promulgated by the Federal Military Government for the entire Federation under the enabling laws is an existing law pursuant to section 315 of the 1999 Constitution and is deemed to be an Act enacted by the National Assembly for the Federal Capital Territory Abuja only and a Law enacted by a State House of Assembly under the residual powers of both legislatures. This is because the National Assembly has no power under the 1999 – Constitution to enact a general law on tribunals of inquiry in the form of the said Act to have effect throughout the Federation of Nigeria.
2. For ISSUE 2, due to the answer given to issue 1, it was rendered unnecessary for answer.
3. For ISSUE 3 was resolved in favour of the Respondent.
i. The Court of Appeal was right that sections 5(d), 11(1)(b), 11(4) and 12(2) of the Act are unconstitutional and invalid in so far as they purport to empower a tribunal of inquiry to impose a sentence of fine or imprisonment in contravention of sections 35(1)(a) and 36(1) of the 1999 Constitution. But the court was wrong to declare sections 5(c), 10 and 11(3) of the Act unconstitutional and invalid.
Section 35 of the CFRN 1999;
Section 36 of the CFRN 1999;
Section 299 of the CFRN 1999;
Section 315(1) of the CFRN 1999;
Section 4(7)(a) of the CFRN 1999;
⦿ SOME PROVISIONS
Provisions from the Tribunal of Inquiry Act, 1966:
“1(1). The President (hereinafter in this Act referred to as the the proper authority’ may, whenever he deems it desirable, by instrument under his hand (hereafter in this Act referred to as the instrument’) constitute one or more persons (hereafter in this Act referred to as member’ or members’) a tribunal to inquire into any matter or thing or into the conduct or affairs of any person in respect of which in his opinion all inquiry would before the public welfare; and the proper authority may by the same instrument or by an order appoint a secretary to the tribunal who shall perform such duties as the members shall prescribe.
5. Subject to the provisions of this Act, a tribunal shall have and may exercise any of the following powers, that is to say – (c) The power to summon any person in Nigeria to attend any meeting of the tribunal to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions. Summons issued under this paragraph may be in Form A in the Schedule to this Act, and shall be served by the police or by such person as the members may direct. (d) The power to issue a warrant to compel the attendance of any person who, after having been summoned to attend fails or refuses or neglects to do so and does not excuse such failure or refusal or neglect to the satisfaction of the tribunal, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure or refusal or neglect to obey the summons, and also to fine such person a sum not exceeding twenty naira, such fine to be recoverable in the same manner as a fine imposed by a magistrate’s court. A warrant issued under this paragraph may be in Form B in the Schedule to this Act and may be executed by any member of the Police force and by any person authorised by an area or customary court, or local government authority to effect arrests.
10. Any person who, after service on him of a summons to attend as a witness or to produce a book, document or any other thing and, notwithstanding any duty of secrecy however imposed, fails or refuses or neglects to do so or to answer any question put to him by or with the concurrence of the tribunal shall be guilty of an offence, and liable on summary conviction to a fine of two hundred naira or to imprisonment for a term of six months: Provided that no person shall be bound to incriminate himself and every witness shall, in respect of any evidence written by him for or given by him before the members, be entitled to the same privilege to which he would have been entitled if giving evidence before a court of justice.
11(1) Any person who commits an act of contempt, whether the act is or is not contempt in the presence of the members sitting in an inquiry, shall be liable – (b) On the order of the tribunal to a fine of twenty naira, such fine being recoverable in the same manner as if it were imposed by a magistrate.
11(3) Where an act of contempt is alleged to have been committed but not in the presence of the members sitting in an inquiry, the tribunal may by summons in Form C or to the like effect in the Schedule to this Act require the offender to appear before the tribunal, at a time and place specified in the summons, to show cause why he should not be judged to have committed an act of contempt and be dealt with accordingly. Summonses issued under this subsection shall be served by the police or by such other person as the tribunal may direct.
11.(4) If any person who has been summoned in accordance with subsection (3) of this section fails or refuses or neglects to attend at the time and place specified in the summons, the tribunal may issue a warrant in Form D or to like effect in the Schedule to this Act to compel the attendance of such person to pay all costs which may have been occasioned in compelling his attendance or by his failure or refusal or neglect to obey the summons, and may in addition fine such person a sum of twenty naira, such costs and fine to be recoverable in the same manner as if they were imposed by a magistrate’s court.
12.(1) For the purposes of section 11 of this Act, the following shall be deemed to be an act of contempt (a) Any act of disrespect and any insult or threat offered to a tribunal or any member thereof while sitting in a tribunal; (b) Any act of disrespect and any insult or threat offered to a member at any other time and place on account of his proceedings in his capacity as a member; (c) Any publication calculated to prejudice an inquiry or any proceedings therein.
2. No punishment for contempt shall be imposed by tribunal until the member shall have heard the offender in his defence.
⦿ RELEVANT CASES
Similar provisions were considered by both the Federal Supreme Court: see Doherty v. Balewa (1961) 2 SCNLR 256, and the Privy Council: see Balewa v. Doherty (1963) 2 SCNLR 155. In that case, the sections which empowered the Commission of Inquiry to impose a sentence of fine or imprisonment were declared void being in contravention of section 20(1) of the 1960 Constitution which forbade a deprivation of personal liberty by any order save one made by a court of justice.
⦿ NOTABLE DICTA
The said Commissions and Tribunals of Inquiry Act, 1961 under which the Prime Minister acted, was enacted purportedly by virtue of Item 44 falling under incidental or supplementary matter of the Exclusive List of the 1960 Constitution. The Privy Council, upholding the Federal Supreme Court on the point, observed that the object of the Act was to confer a blanket power on the Prime Minister to direct inquiries into any matters within Federal competence but said that this was improper because the legislative power conferred by Item 44 was not wide enough to authorise inquiries into subjects about which Parliament might have the competence to legislate, unless there was actual legislation in existence or a function of the Federal Government actually being discharged under the law relevant to and connected with the inquiry. – Uwaifo, JSC. Fawehinmi v. Babangida (2003)
This is because no law not specifically authorised or backed up in our Constitution can be lawfully passed for the Federation of Nigeria by the Federal legislature. It is the limits set under relevant provisions of the Constitution that define and determine the frontiers of the laws that can be enacted. That is the hallmark of constitutional democratic governance which is seen as a reflection of the power granted by the people to meet their aspirations, and none else. In essence, that means that the National Assembly cannot enact a general Law for the establishment of tribunals of inquiry for, and applicable in, the Federation of Nigeria. – Uwaifo, JSC. Fawehinmi v. Babangida (2003)
Admittedly, whether the Lists are long or short, nothing prevents the legislature from enacting a law or laws directed at enabling or authorising the holding of an inquiry or inquiries into a particular Item or Items on the Lists. But in order to have a general law for that purpose, there ought to be an Item in itself on the Exclusive List or Concurrent List or both. That was not quite available in the 1960 Constitution because what was provided in the Lists was under incidental or supplementary matter. This inadequacy was corrected in the 1963 Constitution. I believe I have already given full consideration to this earlier in this judgment. I am satisfied that Balewa’s case is a correct guide which this court is bound to follow. – Uwaifo, JSC. Fawehinmi v. Babangida (2003)
However, by the provisions of section 4 subsection (7) of the 1999 Constitution, the House of Assembly of a State has the power to make laws for the peace, order and good government of the State with respect to matters not included in the Exclusive Legislative List. Since the establishment of Tribunals of inquiry is not a subject under the Exclusive Legislative List, it seems to me that a State House of Assembly has the power to enact the Tribunals of inquiry Act, Cap. 447 and therefore the Act qualifies as an “existing law” under section 315 subsection (1)(b) of the 1999 Constitution and is valid as a State Law. – Uwais, CJN. Fawehinmi v. Babangida (2003)