Matters arising from the Supreme Court judgment in the Saraki case (4)

Continued from Friday 19/02/2016
THE underlined part of the judgment was omitted in the lead judgment of Onnoghen JSC in the Saraki case, which made no reference at all to the Hassan case. No attempt was therefore made to give reasons for not following it or why it does not apply in the Saraki case. It should also be noted that the case of FRN v. Osahon (2006) 5 NWLR (Pt 973) 361 cited by the learned Justice has nothing to do with the issue before the Court for determination.

It is simply amazing that the Court in FRN v. Adewunmi, supra, should say that its decision in that case is not in conflict with the previous decision in Att-Gen, Kaduna State v. Hassan (1985) 2 NWLR (Pt 8) 483, when in fact there is a palpable conflict between the two decisions. In any case, the pronouncement in the Adewunmi case is merely an obiter dictum, as there was in the case an incumbent AGF who personally authorised in writing the initiation of the criminal prosecution against the accused person. The issue before the Court in the Saraki case on which the decision was based was not, therefore, before the Court in the Adewunmi case.

There can be no doubt that the powers given to the Attorney-General of a State under section 191 of the Constitution belong to him alone and not in common with the officers of the Ministry of Justice. Such Officers can only exercise the powers when they are specifically delegated to them by the Attorney-General. The delegation usually takes the form of a notice in the Official Gazette. As there was no Attorney-General appointed for Kaduna State at the time material to this case, his powers under section 191 could not have been delegated to the Solicitor-General

The facts of the case in the Hassan case were that a prosecution for culpable homicide of a boy was withdrawn by the Solicitor-General after committal on a preliminary investigation by a magistrate, who found a prima facie case to have been made against the accused persons. But the Solicitor-General thought the evidence at the preliminary investigation so contradictory as not to justify the prosecution being continued and accordingly withdrew it. The father of the dead boy, in a separate action in the High Court, then sought a declaration that only an Attorney-General or a person duly appointed to act in the office could withdraw or authorize the withdrawal of a prosecution without leave of the court, and that in the absence of an incumbent Attorney-General to authorise it, (an Attorney-General had not been appointed at the time) the withdrawal of the prosecution against the particular accused persons was unconstitutional and void.

The propriety of the exercise of the power by the Solicitor-General and other law officers in the Ministry of Justice turns on the provision that the powers conferred by the Constitution upon the Attorney-General in respect of criminal prosecutions “may be exercised by him in person or through officers of his department” (ss. 160(2) & 191(2)) 1979 Constitution. The interpretative question raised is whether the words “by him” govern both the exercise of the power by the Attorney-General in person and its exercise “through officers of his department” – whether, that is, what is meant is that the power may be exercised by the Attorney-General in person or by him through officers of his department. (emphasis supplied) The contention of the Solicitor-General was that the phrase “through officers of his department” confers upon the officers of the ministry an independent right to exercise the power, which does not depend upon delegation or authorisation by the Attorney-General.

Affirming the decision of the trial judge, the Federal Court of Appeal, by a majority of 3 to 1, rejected the interpretation contended for by the Solicitor-General. Such a view of the provision would clearly do violence to its true meaning and intent. In the context of the provision the word “through” pre-supposes a person who is to act through others. It implies a delegated authority or agency, the officers of the department being merely agents through whom the Attorney-General may act. Their acts done with his authority are presumptively his acts. In the contemplation of the law, the Attorney-General, provided there is one actually in office, is deemed always to be the person acting, whether the action is done by him in person or through officers of his department. As the learned President of the Federal Court of Appeal, Justice Nasir (formerly JSC), observed, “there is nothing in the Constitution to vest the exercise of the constitutional powers of the Attorney-General in any officer of his department without his authorisation” at p. 21 of his cyclostyled judgment; and there can be no such authorisation when there is no one holding or occupying the office or duly appointed to hold it in an acting capacity.

The contention that officers of the Attorney-General’s department have an independent right to exercise it runs counter to the provision that no person not qualified as a legal practitioner with at least ten years’ experience shall “hold or perform the functions of the office of Attorney-General”, in that, as Justice Wali (later JSC) pertinently observed, it will make it possible for officers without the prescribed qualification to exercise the power.

The palpable conflict between, on the one hand, the decision in the Hassan case, and, on the other hand, the decisions in the Adewunmi case (or rather the obiter dictum) and the Saraki case has injected a state of confusion and chaos into the law, leaving it to the lower courts to choose which of the conflicting decisions to follow. As the decisions in Adewunmi and Saraki cases did not have due regard to the reason for vesting the control of public prosecutions in the AGF, and, in particular, to the directive in section 174(3) of the Constitution, the decision in the Hassan case is to be preferred.

The decision of the Court of Appeal was affirmed by the Supreme Court in a judgment concurred in by all seven participating justices : Att-Gen of Kaduna State v. Hassan (1985) 2 NWLR 483. Delivering the leading judgment, Irikefe JSC said at page 503 :
“under section 191 of the 1979 Constitution, the exercise of the powers of the Attorney-General is personal to him and cannot be exercised by any other functionary unless those powers have been delegated to him by the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney-General in office who can be donor of the powers.”

Oputa JSC is also quite categorical on the issue. He said at page 521 :
“I am fully satisfied that under Section 191(2), the powers conferred on the Attorney-General to withdraw proceedings under S.191(1)(c) can be exercised by the Attorney-General personally or by anyone he specifically delegated that power to withdraw any case. In the absence of such specific delegation, which is usually gazetted, no officer of the Department, not even a Solicitor-General, can withdraw a criminal case acting under Section 191 of the Constitution. It then follows naturally that where there is no incumbent Attorney-General, the powers given to him by Section 191 will, as it were, lie dormant. The question of delegation will arise only where there is someone, constitutionally competent, to make that delegation.

Where therefore, as happened in Kaduna State during the period under review, there was no Attorney-General, the Solicitor-General, who cannot act without delegation from the Attorney-General, was acting unconstitutionally when he withdrew Charge No. KDH/28C/81 pending before Aroyewun, J. I am in complete agreement with the argument, reasoning and conclusion of my learned brother, Irikefe, J.S.C., in his lead judgment with regard to the issue whether or not the Solicitor-General of Kaduna State acted constitutionally in withdrawing the criminal case before Aroyewun, J., and I adopt same as mine. I will therefore uphold and affirm the judgment of the court of first instance (the judgment of Chigbue, J.) and the majority judgment of the Court of Appeal, Kaduna Division (which is the judgment of the Court) on the interpretation and application of Section 191 of the 1979 Constitution.” (emphasis supplied).

In his concurring judgment, Uwais JSC said at pages 513 – 514:
“There can be no doubt that the powers given to the Attorney-General of a State under section 191 of the Constitution belong to him alone and not in common with the officers of the Ministry of Justice. Such Officers can only exercise the powers when they are specifically delegated to them by the Attorney-General. The delegation usually takes the form of a notice in the Official Gazette. As there was no Attorney-General appointed for Kaduna State at the time material to this case, his powers under section 191 could not have been delegated to the Solicitor-General.”

The decision in this case applies to the exercise of all the powers of the AGF under section 174, including the power to initiate/undertake criminal prosecutions, and is not limited to the exercise of the power to discontinue prosecutions initiated by others.

The palpable conflict between, on the one hand, the decision in the Hassan case, and, on the other hand, the decisions in the Adewunmi case (or rather the obiter dictum) and the Saraki case has injected a state of confusion and chaos into the law, leaving it to the lower courts to choose which of the conflicting decisions to follow. As the decisions in Adewunmi and Saraki cases did not have due regard to the reason for vesting the control of public prosecutions in the AGF, and, in particular, to the directive in section 174(3) of the Constitution, the decision in the Hassan case is to be preferred.

The error in the Supreme Court decision on this issue is not cured by the Law Officers Act 2004 relied on by the Court. Sections 2 and 4 of the Act provide as follows :
“2. The office of the Attorney-General, Solicitor General and State Counsel are hereby created.
“4. The Solicitor General of the Federation in the absence of the Attorney-Genral of the Federation may perform any of the duties and shall have the same powers as are imposed by law on the Attorney-General of the Federation.”

The creation of the office of AGF by section 2 of the Act is a duplication of section 150(1) of the Constitution, and is, on the authority of Att-Gen of Abia v. Att-Gen of the Federation, supra, null and void for inconsistency with the Constitution. The power given to the SGF by section 4 of the Act is also null and void, being dependent on the existence of the office of the AGF as an office created by the Act.

Moreover, if the law on the meaning of section 174 is as decided by the Supreme Court in the Hassan case, then, that decision, being a decision on the meaning of a provision in the Constitution, becomes incorporated into the Constitution as part thereof, with the result that the meaning assigned to section 174 by the decision of the Supreme Court in the Hassan case cannot be changed by an ordinary law made by the National Assembly, from which it follows that the Law Officers Act 2004, to the extent that it purports to do so, is null and void on this ground as well.

CONCLUDING REMARKS
The front page headline in the national newspapers, “Go And Face Trial, S’ Court Tells Saraki”, seems, frankly speaking, rather prejudicial to the interest of justice. There can be no question but that Dr Saraki must face trial for the criminal offences alleged against him. But he has a constitutional right, in the emphatic words of the Supreme Court in Sofekun v. Akinyemi, supra, (per Fatayi-Williams CJN), to” be tried in a court of law where………he would be sure of getting a fair hearing.” If the trial must be before the CCT, notwithstanding that it is not a court of law of competent jurisdiction, as shown earlier, he (Saraki) cannot be guaranteed a fair hearing before a tribunal already tainted by serious allegation of corruption against its Chairman, Danladi Umar, and on the part of which bias or a likelihood of it seems manifest. A court is supposed to be a sacred temple of justice, and those manning it should be untainted sentinels of justice. In a matter of such crucial importance in the affairs of the country, the Supreme Court should have taken judicial notice of the allegation of corruption leveled against Danladi Umar in the Sunday Vanguard of November 15, 2015, and should have directed that, if the trial of Dr Saraki must be before the CCT, then, Danladi Umar must step aside until he is cleared of the allegation of corruption against him.

The newspaper report discloses an investigation by the Economic and Financial Crimes Commission (EFCC) of a N10 million corruption allegation involving Umar as chairman of the CCT and the former Deputy Controller-General of Customs, Rasheed Taiwo, N1.8 million of which had reportedly been paid by Taiwo and collected on Umar’s behalf by his personal assistant, Gambo Abdullahi. The newspaper report also disclosed that the two other members of the CCT, Robert Odu and Agwage Atedze, feeling so embarrassed by the allegation, had refused to sit with Umar, and that in a joint letter to former President Goodluck Jonathan, dated April 4, 2014, the two members had said as follows:

“May we with respect draw His Excellency’s attention to the allegation of N10 million bribe made against Justice Danladi Yukubu Umar, current chairman of Code of Conduct Tribunal, Abuja, which is being investigated by the EFCC.
“We, the two members of the CCT and the entire staff, are embarrassed and saddened by this allegation because a tribunal set up to check corruption should not be accused of being corrupt. This would not be in keeping with the transformation agenda of the administration.

“We are mindful of the fact that the Federal Government has zero tolerance policy for corruption, and this is the reason for the establishment of the CCT as one of the agencies to fight corruption in all its ramifications.
“It is our prayer therefore that this allegation will be looked into so that the tribunal can start sitting in the interest of litigants and their counsel.”

The Sunday Vanguard of November 15, 2015 further reported that, based on findings of its investigations on the matter, the EFCC raised a two-count charge against Umar and his PA, Gambo Abdullahi, but for reasons unknown, the Commission later dropped Umar’s name from the charge sheet and took only his PA to court, which left Umar to continue functioning as CCT Chairman and to preside over Saraki’s case, sitting with one other member, Agwadza Atedze, who earlier signed a letter declining to continue sitting with Umar.

The same Sunday Vanguard issue again reported that, based on the report and findings of the EFCC investigations, the former Attorney-General of the Federation (AGF), Mohammed Adoke SAN, wrote on May 7, 2015 to former President Goodluck Jonathan, as follows:

“I am of the humble opinion that the current state of affairs in which the CCT is unable to sit while the institution is increasingly diminished by a pall of suspicion, should not be allowed to fester as it will expose the institution to public ridicule and undermine this administration’s effort to combat corruption.
“IN the light of the foregoing therefore, Your Excellency may wish to initiate the necessary steps for the removal of the CCT chairman from office.”

What emerges from all these reports is that Umar faces a serious risk of prosecution and removal from office on corruption charges. The person who has the power to avert or to save him from the risk is the President who, as Head of State, personifies and incarnates the Federal Republic of Nigeria who, as the complainant in the criminal prosecution against Saraki, is a party to the proceedings. This naturally would create an inclination on the part of Justice Umar, as Chairman of the CCT, presiding over Saraki’s case, to want to use the case to ingratiate himself with President Buhari to get him to save him (Umar) from the threatening risk of prosecution and removal from office. Saving himself from the risk of prosecution and removal from office creates in Umar a personal and even a pecuniary interest in the case, in the form of his remunerations and other perquisites of office, which would incline him to want to favour FRN against Saraki.

See on this, Adebesin v. State (2014) 4 S.C. (Pt 111) 151. In addition, FRN, personified and incarnated by President Buhari, is Umar’s employer and Umar is its employee. It has been held by the Court of Appeal in Adio v. Att-Gen Oyo State (1990) 7 NWLR 451 that the employer-employee relationship is a circumstance that gives rise to bias. It is not reasonably to be supposed or be expected that Justice Umar can be impartial or unbiased in adjudicating the case between the Federal Republic of Nigeria (FRN) against Saraki. There can be no greater mockery of the whole notion of impartiality in any adjudicatory system than that Umar, with the threat of prosecution and removal from office by the FRN hanging over his head, should have been allowed to adjudicate as presiding judge in the circumstances of this case. Bias on the part of Umar seems to be clearly manifest in all the circumstances surrounding the case.

Besides, the manner in which the trial was being conducted by Umar manifests also a certain overzealousness that suggests at least a real likelihood of bias on the part of Umar against Saraki or a lack of impartiality – as, for example, the hostile attitude towards Saraki’s request for stay of proceedings based on his objection to the Tribunal’s jurisdiction, as manifested in (a) its refusal to accede to the request; (b) its refusal to obey the FHC’s order dated 17 September 2015 to appear before it to show cause why the proceedings should not be stayed; and (c) its going ahead, in spite of (a) and (b) above, with the proceedings, by issuing a bench warrant for Saraki’s arrest on 18 September, 2015, leading to his team of lawyers walking out from the proceedings in protest and to the Supreme Court eventually staying the proceedings. The speed and what appeared to be a desire to conclude the trial as hastily as possible, as if conviction and the removal of Saraki as Senate President were the pre-determined purpose of the prosecution and trial. These clearly are circumstances from which a real likelihood of bias may be inferred.

As the Court of Appeal held in Omoniyi v. Central School (1988) 4 NWLR (Pt 89) 458, “the term ‘real likelihood of bias’…must mean at least ‘a substantial possibility of bias.’” The Court adopted the words of Lord Denning MR in Metropolitan Properties Co. Ltd v. Lannon, [1969] 1 Q.B. 577 at p. 599, as follows:
“In considering whether there was real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of a tribunal, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

However, it is necessary that there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, of a tribunal would or did favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it to think that people might think it did. The plain reason for this is that justice is rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the Judge is biased.”
Thus, in this case, if actual bias is not present, a real likelihood of it does clearly exist.

When bias or the likelihood of it is present in a case, as in the Saraki case, its effect, as the Court of Appeal held in Denge v. Ndakwoji (1992) 1 NWLR 223, is not only to diminish the stature and integrity of the judge, but also to destroy the foundation of his judgment, however sound and consistent with the Rules of Court, pleadings and evidence”, citing in support Omoniyi’s case, supra. In more precise terms, it vitiates the entire proceedings. “If actual bias is proved”, the Supreme Court held in a 2014 case, Adebesin v. State (2014) 4 S.C. (Pt 111) 152, “the proceeding is flawed and vitiated for contravention of section 36 of the Constitution of Nigeria 1999:” see the numerous other decisions to the same effect cited in the above cases.
CONCLUDED
•Prof. Nwabueze is a constitutional lawyer