Dr. Olubukola Abubakar Saraki v Federal Republic of Nigeria: Matters Arising
On 5 February, 2016, the Supreme Court of Nigeria delivered a unanimous decision on the appeal filed by Dr Olubukola Abubakar Saraki (the Appellant) against the decision of the Court of Appeal. The facts of the case are simply as follows. The Appellant was a two-time Governor of Kwara State between May 2003 and May 2011. It was alleged by the Code of Conduct Tribunal that he made a false declaration regarding his assets. As a Governor he was constitutionally bound to declare his assets every four years when assuming and vacating office. The alleged false declaration led to his arraignment before the Court of Conduct Tribunal established under the 5th Schedule to the 1999 Constitution, as amended and the Code of Conduct Bureau and Tribunal Act, Cap C15, Laws of Federation of Nigeria, 2004.
Several issues arose in the course of the arraignment and appeals at the Court of Appeal and Supreme Court. These include whether the majority decision of the Court of Appeal was right in the interpretation of the Constitution when it held that the Code of Conduct Tribunal was properly constituted in law when it sat on 18 September, 2015 with the Chairman and one member in contravention of the provisions of paragraph 15(1) of the 5th Schedule to the 1999 Constitution; whether the majority decision was right when it held that the Code of Conduct Tribunal is a court of limited criminal jurisdiction competent and empowered to issue a bench warrant against the Appellant; and whether having regard to the clear wording of section 24(2) of the Code of Conduct Bureau and Tribunal Act, 2004 whether the 13-count charge preferred against the Appellant by someone other than the Attorney Generation of the Federation was competent. However, the one of interest to me in this write up is the question of the constitution and quorum of the Code of Conduct Tribunal.
In law, the question of jurisdiction is very critical. Jurisdiction is the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognisance of matters presented in a formal way for its decision as stated by the Supreme Court in NATIONAL BANK v SHOYOYE (1975) 2 SC.181. To put it in another way, 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 (1975) 2 SC. 15." Per MOHAMMED, J.S.C. According to the Supreme Court: "Since it is the competence of the Tribunal that is being challenged in this appeal, the law is that 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; and 4. The condition precedent to the exercise of jurisdiction has been satisfied." as laid down by this Court in its leading decision on this subject in the case of MADUKOLU & ORS v NKEMDELIM & ORS (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." Per MOHAMMED, J.S.C
The Supreme Court further held thus: "The above position is very much similar to the provisions of Section 285(1) of the 1999 Constitution, as amended by Section 29 of the First Alteration Act which establishes the National and State Houses of Assembly Election Tribunals. In Section 285(3) of the said 1999 Constitution, it is provided thus:- ‘The composition of the National and State Houses of Assembly Election Tribunal and the Governorship Election Tribunal respectively shall be as set out in the six Schedule to this Constitution.’ However, Paragraph 1(1) of the said sixth Schedule enacts thus:- 'A National and State Houses of Assembly Election Tribunal shall consist of a Chairman and two other members" - just like the provisions of Paragraph 15(1) of the 5th Schedule to the 1999 Constitution, as amended in relation to the Code of Conduct Tribunal. In order to determine the quorum of the said National and State Houses of Assembly Election Tribunal, Section 285(4) of the said 1999 Constitution as amended by the First Alteration provides that: ‘The quorum of an election Tribunal established under this Section shall be the Chairman and one other member." Per ONNOGHEN, J.S.C.
A court or tribunal or meeting is properly constituted when, among others, a quorum is formed. The word “quorum” is the Latin for “of whom” and derives from the wording of commissions by which persons were, from at least the fifteenth century, designated as members of a body by the words “quorum vos … unum esse volumus” (meaning “of whom it is our wish that you … shall be one”). A quorum denotes the number of members of any body of persons whose presence at a meeting or sitting or hearing is requisite in order that business may be validly transacted. Conversely, the mere fact that a number of members, sufficient to form a quorum, may meet casually, does not constitute a meeting where the other requisites, such as due notice, are absent.
In the conduct of legislative business or meetings the rules generally impose a minimum number of members that must be present before such a body can proceed to do business. The Constitution of the Federal Republic of Nigeria is replete with such provisions. Accordingly, sections 48 and 49 of the 1999 Constitution, after stating that the Senate shall consist of three Senators from each State and one from the Federal Capital Territory and 360 members in the House of Representatives respectively, section 54(1) of the Constitution provides that “the quorum of the Senate or of the House of Representatives shall be one-third of all the members of the legislative house concerned. In other words, the composition of the Senate is one hundred and nine (109) Senators. One-third of 109 is 37 while one-third of 360 is 120. Put differently, for the Senate and House of Assembly to validly transact business a minimum of 37 and 120 members respectively must be present.
In the Judiciary, section 230 of the Constitution provides that the Supreme Court shall consist of the Chief Justice of Nigeria and such number of Justices of the Supreme Court not exceeding twentyone as may be prescribed by an Act of the National Assembly. Furthermore, section 234 of the Constitution provides that for the purpose of the Supreme Court exercising any jurisdiction conferred upon it, the Supreme Court is duly constituted if it consists of not less than five Justices of the Supreme Court and where it is exercising its original jurisdiction, it shall be constituted by seven Justices. The Court of Appeal has a similar provisions in sections 237 and 247 of the Constitution.
In company administration, the articles of association of a company normally provides for the quorum. Furthermore section 232(1) of the Companies & Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004 provides thus: “Unless otherwise provided in the articles, no business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business and throughout the meeting.
Unfortunately in the case of the Code of Conduct Tribunal, paragraph 15(1) of the 5th Schedule provides that there shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons. Unlike the Supreme Court and the Court of Appeal, the Constitution is silent on how the Tribunal shall be constituted, that is, the quorum. However, the Code of Conduct Tribunal before whom the Appellant was arraigned consisted of a Chairman and a member. This was challenged at the Tribunal, the Court of Appeal and thence the Supreme Court. At the Court of Appeal there was a split decision as two Justices ruled against the Appellant and one in favour of the Appellant while at the Supreme Court, the seven-man Panel unanimously dismissed the appeal.
In the course of the hearing several positions were canvased. The predominant one was that if there is any lacuna in the Constitution in terms of the quorum of the Code of Conduct Tribunal, it was cured by the Interpretation Act, Cap I23, Laws of the Federation, 2004 which is an existing law under section 318 of the Constitution. Section 28 of the Interpretation Act provides thus: “Notwithstanding anything contained in any Act or other enactment the quorum of any tribunal, commission of enquiry (including an appeal tribunal established for the purpose of hearing any appeal arising therefrom) shall not be less than two (including the Chairman): Provided that the chairman and the member shall be present at every sitting of the tribunal, commission of enquiry throughout the duration of the trial or hearing."
In the words of the Supreme Court: "...The Court below is therefore correct in invoking the above provisions to determine the quorum of the tribunal since the Interpretation Act is always the law to resort to, in order to interpret the provisions of the Constitution or any other statute creating a statutory body." Per SANUSI, J.S.C. Since section 235 of the Constitution provides that no appeal shall lie to any other body or person from any determination of the Supreme Court, this determination by the Supreme Court is final.
It is in this context that I feel that many matters have arisen for further deliberations. The first matter that has arisen in the decision of the Supreme Court is why the drafters of the Constitution created a lacuna in not providing how the Code of Conduct is to be constituted like the Supreme Court and the Court of Appeal? The second matter that has arisen is whether the majority decision in the Court of Appeal and unanimous decision of the Supreme Court is right in dismissing the appeal on this ground by relying on the provisions of section 28 of the Interpretation Act as such an interpretation is capable of producing unintended results. The third matter that has arisen is whether the lacuna created in the Constitution can be cured by drawing an analogy from the amendment to the Electoral Act and the First Alteration Act. The fourth matter that has arisen is why the drafters of the Constitution have different provisions for determining quorum in the National Assembly, the Court of Appeal, the Supreme Court and none for the Code of Conduct Tribunal? While I agree with their Lordships that on a literal interpretation of section 28 of the Interpretation Act, the lacuna in paragraph 15(1) of the 5th Schedule to the Constitution was cured, the last matter arising is what will happen if there is a split decision between the Chairman and one other member of the Tribunal? Will there be a majority or minority decision? Or will there be an enforceable decision at all since the Chairman has no casting vote?
Conventionally, a quorum is usually an odd number as can be seen in sections 234 and 237 of the Constitution. Indeed section 24(1) of the Arbitration and Conciliation Act Cap A18, Laws of the Federation, 2004 provides in that in an arbitral tribunal comprising more than one arbitrator, any decision of the tribunal shall, unless otherwise agreed by the parties, be made by a majority decision of all its members. Do we need a similar provision in the 5th Schedule to the Constitution and the Code of Conduct Bureau and Tribunal Act?
It is therefore my respectful view that the Electoral Act, the Interpretation Act, the 5th and 6th Schedules to the Constitution should be amended to expressly provide for a quorum of an odd number. In my considered view, having a quorum of two (the Chairman and one member) is capable of creating more problems especially where there is a split decision. What would have happened in this case if the Court of Appeal had a quorum of two?
Professor Paul Obo Idornigie, SAN, PhD, FCIArb, FCIS wrote in from the Nigerian Institute of Advanced Legal Studies, Abuja.