Is the Code of Conduct truly Inferior to the Federal High Court of Nigeria?

In 2015, I authored a piece titled “ Is the Code of Conduct Tribunal Really Inferior to the Federal High Court?”

Given the recent travails of the Chief Justice of Nigeria (CJN), I was left with no choice but to make recourse to the 2015 article, authored four (4) years before this seemly recent controversy on the propriety or otherwise of the orders made by the Federal High Court with respect to the seemly controversial case involving the CJN at the Code of Conduct Tribunal (CCT).

As a preliminary note and caution, I should mention that this post does not attempt to consider the issue of whether or not the CCT has the jurisdiction to try the CJN in the first instance or comment on the seemly executive rascality and/or ill-timed exercise of prosecutorial discretion. This post is essentially focused on highlighting some of the arguments I made four (4) years ago, which I believe are still very valid in the light of the CJN's travails at the CCT.

In the article, I noted the varying arguments in several quarters as to whether the Code of Conduct Tribunal (CCT) is actually inferior to the Federal High Court (FHC). Specifically, I considered the jurisdiction of the CCT vis-à-vis the inherent jurisdiction of the FHC and proceeded to consider in what instances, if any, the CCT would be bound by an Order of the FHC and whether the CCT is indeed a court of superior record.

In Paragraphs 8-11 of the article, I asserted thus:

A careful look at Paragraph 18(4) and (5) of Part 1 of the Fifth Schedule to the Constitution and Section 23 (4) & (5) of the Code of Conduct Tribunal Act (CCBTA) will reveal two things, to wit: (x) Where the CCT gives a decision as to whether or not a person is guilty of a contravention of any of the provisions of the Code of Conduct, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings; and (y) Any right of appeal to the Court of Appeal from the decisions of the CCT shall be exercised in accordance with an CCBTA and the rules of court for the time being in force, regulating t he powers, practice and procedure of the Court of Appeal.

Furthermore, Paragraph 17(4) of the Part 1 of the Fifth Schedule of the Constitution stipulates that “[w]here the Code of Conduct Tribunal gives a decision as to whether or not a person is guilty o f a contravention of any of the provisions of the Code of Conduct, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings.”

Relying on the foregoing, one may be tempted to conclude that a careful read but purposive interpretation of the above stated provision is that the right to appeal only lies to the Court of Appeal, where a decision as to whether a person is guilty of a contravention of any the provisions of the Code of Conduct has been reached. In other words, one may rightly assert that an appeal will not lie to the Court of Appeal from a bench ruling or a decision of the CCT if such a decision does not finally determine whether a public officer is guilty of a contravention of the any provisions of the Code of Conduct. 

In addition, one may also be right to assert that for an appeal to be competent from the decision of the CCT to the Court of Appeal, the CCT must have actually given a final decision on whether a Public officer charged before it is guilty of the Code of Conduct or not. Consequently, where a decision has not been reached whether a public officer is guilty or not as the case is in Dr Bukola Saraki?s case (taking into consideration that Dr. Saraki has not even taken his plea), the argument may be put forward that such an appeal filed at the Court of Appeal is susceptible to being declared incompetent.

In the 2015 article, I considered the arguments of the two major schools of thought on whether the CCT is indeed a superior court of record. Proponents of the first school of thought, ably represented by Chief Olisa Agbakoba SAN, a former President of the Nigerian Bar Association argued that theconduct of the CCT in the Saraki Case and its failure to comply with the order of the FHC is condemnable and could result in a total disregard for the rule of law cum established hierarchy of courts. In arguing that the CCT is not a superior court of record, but an inferior court, proponents of this school of thought postulated that the CCT “is not a superior court; it is an inferior court and because it is an inferior court, it is amenable to the judicial review jurisdiction of a superior court of record like the Federal High Court”. Different opinions and views have been expressed by proponents of this school of thought, who have further contended that what the CCT did, in issuing a bench warrant against the Senate President, Senator Bukola Saraki, in the face of an existing Order of the FHC amounts to serious judicial abuse of the due process of the rule of law and amounts to judicial rascality on the part of the CCT.

On the other hand, proponents of the second school of thought have argued that the CCT is also a Superior Court of Record with specific jurisdiction in certain matters, viz, violations of the Conduct of Conduct prescribed for public officers outlined in the Fifth Schedule to the Constitution. It has been further argued that the CCT qualifies as a Superior Court of Record and is a court of coordinate jurisdiction with the FHC; given the fact the provision of Paragraph 18(4) of the Fifth Schedule of the Constitution which provides that appeals from the CCT lie only to the Court of Appeal.

I respectfully submitted, however, that a lie has been delivered by some of the proponents of this school of thought who have argued, rather erroneously that, “any dissatisfaction arising from a decision or a ruling of the CCT can only be entertained by the Court of Appeal.” Nothing, I believe, can be farther from the truth than this faulty assertion which, when tested and scrutinized will fail to see the light of day given the analysis earlier done in the article on the scope of the right of appeal from a decision of the CCT to the Court of Appeal.

In the article, I contended that to say that "any dissatisfaction" can only be entertained by the Court of Appeal is stretching what is provided for in the Constitution.

In Paragraph 23 of the article, I argued as follows:

There is a need to consider the judicial review power of the FHC in relation to the CCT. The Court of Appeal in Nwaogwugwu v. President, F.R.N. (2007) 6 NWLR (Pt.1030) 237 has defined “judicial review” as “a special procedure through which public bodies or tribunals exercising quasi-judicial or judicial functions are subject to the supervisory jurisdiction of superior courts. ? Similarly, the apex Court, Per Onnoghen, J.S.C., in African Continental Bank Plc. v. Nwaigwe (2011) 7 NWLR 380 has opined inter alia that “[j]udicial review is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies.” See also Bakare v. L.S.C.S.C. (1992) NWLR (Pt. 262) 641 where the Supreme Court, Per Nnaemeka-Agu, JSC held as follows: “The courts in exercise of their power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, acts, decisions, and transactions. In the exercise of the jurisdiction, the courts can declare them invalid or ultra vires and void not because they are unconstitutional in terms of section 33 of the Constitution but because they offend against the rules of natural justice of audi alteram partem, or nemo judex in causa, or offends against the rules of fairness, or otherwise offends the rule of natural justice. All these are in the realm of administrative, and not constitutional, law. The court can by its power of judicial review set them aside. The great divide is that section 33 deals with judicial bodies and does not necessarily extend to all bodies not judicial but all the same deciding on right and obligations."

In concluding my submissions in the article, I noted that it may be argued that given that the High Court (including the FHC) has the supervisory jurisdiction to review the proceedings of an inferior court and/or tribunal, the FHC, will be well within its inherent jurisdiction to exercise its power of judicial review on a Tribunal such as the CCT, when invited to do so by an aggrieved party, except there is an express statutory or constitutional provision to the contrary.

 The foregoing notwithstanding, it can be rightly argued that to the extent that the FHC does not intend to review the final “decision? of the CCT given that the Constitution has already provided that the right of appeal lies to the Court of Appeal in such instance, the FHC will well be within its inherent powers to consider, for instance, the validity of the procedure adopted by the CCT in trying an accused person.

In Paragraph 22 of the article, I opined thus:

Relying on the foregoing provisions, it may be rightly asserted that the drafters of the Nigerian groundnorm never contemplated a situation where a public officer cannot approach the court, particularly the FHC (which is a Superior Court of record as established in Section 6 of the Constitution) for a judicial review, to determine the lawfulness or otherwise of an action or procedure adopted by the CCT in relation to such public officer.

In Paragraph 20 of the article, I further posited as follows:

A lie has however been given to an argument in certain quarters, that taking into consideration the provisions of Paragraph 18(4), Part 1 of the Fifth Schedule to the Constitution and Section 23(4) of Code of Conduct and Bureau and Tribunal Act (CCBTA), the CCT, a “superior court of record? with coordinate jurisdiction with the FHC is not bound by an order of the FHC, given that “an appeal lies as of right from the decision or from any punishment imposed” on a public officer. 

The fallacy contained in the above argument is best unraveled by the submission earlier made that neither the Constitution nor the CCBTA provides for the establishment of the CCT, as a superior court of record in Nigeria. 

Note: The 2015 article and this post represent only the opinion of the author and do not necessarily represent the opinion of any organisation or institution that the author has been a part of, work(ed) for or with in any capacity whatsoever. Opinions expressed in the article and this post are solely for informative purpose and do not constitute legal opinion. Where in need of a legal opinion on the issues raised in the article or post, please free to reach out to the author by email - [email protected]