Can the Code of Conduct Tribunal, CCT, continue proceedings while its jurisdiction is being challenged at the appellate court?

General Considerations1. The Code of Conduct Tribunal, CCT, is a creation of the Legislature, i.e. the National Assembly. The Composition of the Tribunal is stated in paragraph 15(1) of Part 1, Fifth Schedule of the 1999 Constitution. It shall consist of a Chairman and two members.

Justice A.G Karibi-Whyte

The expression “shall” is mandatory.  The qualification of the Chairman is prescribed.  Although by paragraph 15(3) the Chairman and the members shall be appointed by the President in accordance with the recommendation of the National Judicial Council, the qualifications of the other two members are not prescribed.  It is however unarguable that there shall be three members to constitute the Tribunal.

Additionalpower

2. In sub-paragraph (4) of Paragraph 15, the National Assembly is empowered by law to confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effective to discharge the functions conferred on it in this Schedule.
3. Paragraph 12(1) –
4. (4) provides for the tenure of the Office of Chairman and Members of the Tribunal. Paragraph 18 (1) – (7) provides for the powers of the Tribunal i.e. the jurisdiction of the Tribunal which is be found in Part I paragraph 1 – 13 of the Fifth Schedule.

In addition paragraph 18(2) which prescribes the punishment is specific as to the nature of the powers of the Tribunal.  This is paragraph 18 (2).  Paragraph 18(3) enlarges the punishment to include the penalties that may be imposed by any law where the conduct is also a criminal offence.

Analysis of the provisions

It appears from the enabling law that the jurisdiction of the Code of Conduct Tribunal is confined and limited to the Conduct clearly outlined in paragraphs 1 – 13 of the Fifth Schedule.  The conduct proscribed has been stated in considerable detail and appears to be exhaustive.  These are the only powers it can legally and lawfully exercise.

It is pertinent to observe that the law which enables the CCT to try persons who have contravened the provisions of the Code have carefully avoided the use of the expression criminal to describe the conduct so punished.  It does not contemplate any other conduct.  Epressio unius est exclusio alterius.  Rather it provides in paragraph 18(3) that the sanctions in paragraph 18 (2) may be imposed, without prejudice to the penalties in any law where the conduct is also a criminal offence.  See also the definition of misconduct in paragraph 19.

Again paragraph 18(6) has stated clearly that a finding of guilt by the Tribunal for contravention is not a conviction for an offence in a Court of law.  Thus rejecting the defence of autrofois convict or acuit. The interpretation provision of paragraph 19 has defined misconduct in the Code to “mean breach of the oath of allegiance or oath of office of a member of breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities”

The expression, public officer, public office have also been defined.  Note Paragraph 11(3) as to presumption of proof of guilt on the accused, and Paragraph 11(2), 13 as to vicarious criminal liability of the accused.  These are presumptions of guilt on the accused which is unconstitutional.  This is not proof of mere fact in issue – See Section 36(5) constitution of Federal Republic of Nigeria 1999.

I have endeavoured to state the Constitution of the membership of the Code of Conduct Tribunal.  I have also stated the powers of the Tribunal.  The fact that it is a Tribunal created by the National Assembly, and not one of the Constitutional Courts created in Section 6(6) of the Constitution is not in dispute.

Limitedjurisdiction

Its jurisdiction is limited to the subject matter listed therein and a prescribed by the National Assembly.  The Code of Conduct Tribunal has not been vested with exercise of criminal jurisdiction even by implication of the scope allowed in the sanction it can impose.

On the question whether the Code of Conduct Tribunal can continue proceedings with respect to a matter while its jurisdiction is being challenged in the Court of Appeal – My prompt reaction and answer is NO.  It cannot.  It is well settled principle and citations of judicial authority as precedents in support is unnecessary that determination of the issue of jurisdiction when raised is fundamental to the determination of the lis before the Court.

The meaning of the word jurisdiction has been accepted – as the authority which a Court or Tribunal has to decide matters before it or to take cognizance of matters presented in a formal way for its decision.  Where a Court does not have jurisdiction, there is nothing before it to adjudicate.

The limits of its authority as in this case may be prescribed, as it has been prescribed by stature under which the Court or Tribunal is created – concisely stated jurisdiction means the authority which a Court has to decide matters contested before it, or to take cognizance of matters presented in a formal way for its decision – see National Bank v. Shoyoye (1977) 5SC.181

Exercise ofjurisdiction

A Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so.  See Kalio v. Daniel-Kalio (19750 2sc. 15.  A Court or Tribunal is only competent when; 1) It is properly constituted with respect to the number and qualification of its members; 2)

The subject matter is within its jurisdiction; 3)The action is initiated by the due process of law; 4) The condition precedent to the exercise of jurisdiction has been satisfied see Madukolu v. Nkemdilim (1962) All NLR 587 per Bairamain JSC.

The failure to satisfy any one of these conditions is fatal to the exercise of jurisdiction and adjudication. The Chairman of the Tribunal is contending that it is competent to assume jurisdiction sitting with him and only one of its members.  This is clearly in breach of the provision enabling the exercise of jurisdiction.

It is only properly constituted when constituted with the Chairman and the other two members.  A court or Tribunal is not allowed to ascribe meaning to a statute merely to make it conform with its own opinion or views of sound social policy – A-G Lagos State v. Dosunmu (1989) 3NWLR (pt. III) 552; A-G Federation v. Sode (1990) 1NWLR (pt. III) 500.

Propercomposition

The Code of Conduct Tribunal is in the instant case without doubt not properly constituted as to its composition.  Paragraph 15 (1) of the First Schedule has prescribed the proper composition as the Chairman and two members.  The Code of Conduct Tribunal cannot proceed with the Chairman and o member.  This is in breach of the mandatory provision which must be complied with.

The Tribunal can only adjudicate on a controversy when it has jurisdiction to do so.  Since the issue of jurisdiction is fundamental to the hearing of an action, it is crucial to determine in linine at the first opportunity whether there is jurisdiction because it will be manifestly absurd to suggest a Court can proceed with full evidence of the parties, where the exercise if carried out eventually will result in a nullity- see Timitimi v. Amabebe 14WACA 374.

The law is well settled that the issue of jurisdiction can be raised at any state of the proceedings – A-G East V. A-G(Fed) (1965) 1All NLR. 224.  It is necessary for the Code of Conduct Tribunal to discontinue the trial because the existence or absence of jurisdiction in a Court of trial or Tribunal is at the root of the matter so as to nullify or affirm the trial Court’s decision or order in respect of the relevant subject matter.

Relevantsubject

See Obikoya v Registrar (1975) 4sc. 31.  Where an inferior Court, as in this case, a Tribunal or any Court proceeds without jurisdiction the eventual decision will amount to nothing – See Peenock Ltd. v. Hotel Presidential Ltd. (1982) 12sc.  The CCT in this case is not properly constituted to try any case whatsoever.  Its effort if allowed to continue will result in a nullity.  It should discontinue and wait for the decision of the Court of Appeal on the issue of Jurisdiction.

Does the CCT have criminal jurisdiction?  Does anything in the Act or indeed the Constitution of 1999, give it the powers to assume jurisdiction not expressly granted by it by the Constitution? It is an accepted fundamental principle of our criminal jurisprudence, the exercise of our criminal jurisdiction that no person can be tried and convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law.

A written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.  Hence, such a provision cannot be created by implication of the construction/interpretation of any law – See S.36(12) Constitution 1999.  It definitely cannot be created retrospectively – See S.36(8) Constitution 1999.

The Code of Conduct Bureau has set out in detail conduct which should be sanctioned as breach.  In the ordinary rules of construction, where the breach of conduct has not been defined as criminal, they cannot be tainted with a criminal hue.  We cannot by mere construction render conduct criminal.  It must be so defined by law.  The schedule only refers to criminal offences in paragraph 18(3) in respect of punishment for breach of conduct where such conduct is also a criminal offence in a law.

Criminaloffence

This is invariably by implication from another offence which is unlikely to have been defined and penalty therefore defined in a written law.  Accordingly, the CCT which appears anxious to exercise of its powers in paragraph 18 cannot be said to be vested with exercise of criminal jurisdiction which is nowhere prescribed.  This is in excess of jurisdiction.

The Code of Conduct Tribunal is exercising power of the Code of Conduct Bureau as stated in Part I, paragraph 2-13 and 18(1)(2)(3) of the Fifth Schedule.

The only suggestion of exercise of criminal jurisdiction is where in sub-paragraph (3) of Paragraph 18, the Code of Conduct Tribunal is allowed to impose any punishment without prejudice to the penalties imposed in sub-paragraph (2) by any law, where the conduct is also a criminal offence.  This provision did not vest the Code of Conduct Bureau or the Code of Conduct Tribunal with criminal jurisdiction.

It merely refers to the nature of the punishment that can be imposed after finding of guilt in respect of the conduct proscribed. The code of Conduct Tribunal is a creation of the National Assembly with prescribed powers and limited jurisdiction clearly expressed in the enabling law.

It conforms with the provisions of Section 6(5)(j) Constitution 1999.  It does not enjoy the unlimited jurisdiction vested by the Constitution 1999 in the Courts named in Section 6(5)(a)(h).

Criminaljurisdiction

The CCT is a Court created by the National Assembly to exercise jurisdiction at first instance or on appeal with respect with which the National Assembly may make laws. I am not aware of any subsequent law of the National Assembly amending and increasing the powers of the Code of Conduct Bureau and of the CCT to vest the exercise of criminal jurisdiction in the CCT, or the exercise of another power.

I therefore, respond to the two questions posed as follows: 1. CCT should not, as it cannot as an inferior Court continue proceedings whilst its jurisdiction was being challenged. 2.  The CCT is not vested with the exercise of criminal jurisdiction.

The reference to criminal offence in the punishment it can inflict cannot be so construed.  There is no provision in its enabling law to assume jurisdiction not expressly granted.

By Justice A.G Karibi-Whyte. Justice A.G Karibi-Whyte, retired from the Bench of the Supreme Court