TOLULOPE ADEREMI Partner, Perchstone & Graeys

I must start by saying what is presently happening at the Code of Conduct Tribunal (CCT)is a result of the dynamism of the Nigerian judiciary. Right from the history of the pre-colonial age through the colonial and military experiences up until the return to Constitutionalism especially the current democratic dispensation, there has been a compelling need to re-organise and recognize some Courts as ‘superior courts of record’. These Courts of course must possess certain characteristics to earn the title ‘superior courts of record’. However, it is increasingly looking likely that the only criteria perhaps is ‘a mention of the same under Section 6 of the Constitution’. In my view, that is the genesis of the crisis of the status of the Code of Conduct Tribunal.

By the provision of Section 6(5) (a) to (i) of the 1999 Constitution, the Courts recognized as the only superior Courts of record in Nigeria are only those listed in the Constitution. They are: the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court; the High Court of the Federal Capital Territory, Abuja; the High Courts of the States of the Federation; the Sharia Court of Appeal of the Federal Capital Territory, Abuja; the Sharia Courts of Appeal of the States of the Federation; the Customary Court of Appeal of the Federal Capital Territory, Abuja and the Customary Courts of the States of the Federation . However, these Courts (as well as other Courts which may be authorized or established by an Act of the National Assembly or law of the House of Assembly of a State pursuant to paragraphs (j) and (k) of Section 6(5)) are vested with the judicial powers including power to adjudicate over all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. This latter qualification appears to suggest perhaps that there may be other ‘Superior Courts’ in Nigeria other than those listed by Section 6.

It therefore means that other Courts may be authorized or established by an Act of the National Assembly and shall be vested with judicial powers including powers to adjudicate over all matters; such, it may be argued is the case of the Code of Conduct Tribunal which was established per the 5th Schedule (Part I) to the Constitution of the Federal Republic of Nigeria 1999 and pursuant to the Code of Conduct Bureau and Tribunal Act. Perhaps, it may be added that one unwritten characteristic of a superior court of record is for appeals to lie directly to the Court of Appeal; the said Court (The Appeal Court) invoking its supervisory jurisdiction over such matters. Again, the CCT per its Section 23(4) (Part 1) of the Code of Conduct Bureau and Tribunal Act,  appeals lie directly to the Court of Appeal.

Putting the argument in perspective, the Federal High Court and the Code of Conduct Tribunal are both creations of the 1999 Constitution. Whilst one is listed under Section 6, the other isn’t but satisfies other criteria for being referred to as a ‘superior court of record’. The next question perhaps then should be ‘Whether both Courts are of coordinate and/or concurrent jurisdiction’. Courts may be said to have coordinate jurisdictions if they both (by law) are empowered to consider and adjudicate on matters of similar subject-matters. For example, where as regards the issue of Fundamental Human Right, a State/Federal High Court may be said to have concurrent jurisdiction. What is however unclear is whether both Courts (a Federal High Court and the CCT) have coordinate jurisdiction; meaning whether both Courts rank equally. Again, one will have the provision of Section 23 (4) (Part 1) of the Code of Conduct Bureau and Tribunal Act in mind.

As I had mentioned earlier, I have no doubt that this matter will surely invoke the supervisory jurisdiction of the Court of Appeal (as appeals lie as of right to the Court of Appeal from the CCT pursuant to Section 23(4) (Part II) of the Code of Conduct Bureau and Tribunal Act) which I am sure the litigants will take advantage of. I have confidence the Court of Appeal will rest this seeming confusion. I have also read in some quarters that the National Judicial Council (NJC) or indeed the Chief Justice of Nigeria should make a pronouncement on the subject matter. With respect, I am not sure that is neither here nor there as it is only the Court that is statutorily empowered to interprete constitutional provisions and not ‘judicial officers’.

On whether a criminal charge can be preferred against an accused in the absence of a sitting Attorney General (AG);Section 174 of the 1999 Constitution. The simple answer to this is that, the office of the Attorney General is a body corporate with perpetual succession and continues to function regardless of whether or not there is a sitting Attorney General. As persuasive as this argument sounds, a careful perusal of Section 24(2) and (3) of the Code of Conduct Bureau and Tribunal Act may require a closer examination of whether or not (as has been done), a Deputy Director of the office of the Attorney General can prefer the criminal charge without evidence of an ‘authority to do so’ from a sitting Attorney General (of course, the answer is very obvious). This second leg of the question largely must lie with the Appellate courts for resolution and a speedy one for that matter”