ADEBAYO SEGUN ONI v. JOHN KAYODE FAYEMI & ORS
(2019)LCN/12692(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2019
CA/EK/94/2018
RATIO
INTERPRETATION: MEANING OF ‘INDICTMENT’
“The word ‘indictment’ is defined in Black’s Law Dictionary, 9th Edition as: 1. The formal written accusation of a crime, made by a grand jury and presented to the Court for prosecution against the accused person 2. The act or process of preparing or bringing forward such a formal accusation. The word has also received substantial judicial interpretation. In Amaechi v. INEC (2008) 5 NWLR (PT 1080) 227, the Supreme Court, per M Mohammed, JSC (now CJN) the following explanation was given: ‘By definition, the word ‘indictment’ simply means a formal accusation; the written accusation against someone who is to be tried by a Court of law. Evident from the definition of the word ‘indictment’ is the fact that an indictment does not involve conviction or punishment. An indictment formally accuses a person of a criminal offence. It is therefore no more than an allegation. The person accused is now handed over to the Courts for prosecution.'” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUDICIAL COMMISSION: WHETHER JUDICIAL COMMISSION OF INQUIRY IS A COURT OF COMPETENT JURISDICTION
“A Judicial Commission of Inquiry is not a Court of competent jurisdiction. It is legally incapable of trying any person for any criminal offence, unless a statute confers in that jurisdiction it cannot convict a person for committing an offence, it is a fact finding body. Its adverse findings and recommendation cannot amount to the conviction of a person for the commission of an offence. See Amaechi V INEC (2008) 5 NWLR (Pt. 1080) 227, AC v. INEC (2007) 12 NWLR (Pt. 1048) 220 @ 259 – 260 and Abdulkarim & Ors v Shinkafi & Ors (2008) LPELR-3555 (CA).”PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
ADEBAYO SEGUN ONI Appellant(s)
AND
1. JOHN KAYODE FAYEMI
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment):
This appeal No. CA/EK/94/2018 was commenced on 21-12-2018 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court at Ekiti delivered on 10-12-2018 in Suit No. FHC/ABJ/CS/663/2018 by U.N. Agomoh J.
All parties herein filed, exchanged and adopted their respective briefs as follows- appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief, 3rd respondent’s brief, appellant’s reply brief to the 1st respondent’s brief, appellant’s reply brief to 2nd respondent brief
The appellant’s brief raised the following issues for determination-
1. Whether the lower Court was right in holding that a person appointed to serve the Federation and Federal Republic of Nigeria in the capacity of a Minister in charge of the Federal Ministry of Mines & Steel of the Federal Republic of Nigeria was not a public officer and a person in public service by nature of his job schedule as a minster and within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended, the Fifth Schedule thereto and Judicial pronouncements.
2. Whether the lower Court was right by its refusal to hold that the 1st Respondent, admittedly a Minister of the Federal Republic of Nigeria, appointed or employed was obliged to resign his appointment from office before participating or contesting in the 12th May, 2018 primary election conducted by the 2nd Respondent in line with the 2nd Respondent Constitution and extant Guidelines for the Nomination of Candidate for Public Office.
3. Whether the lower Court was right by its reliance on extraneous materials and law other than the 2nd Respondent Constitution and Guidelines in holding that the indictment of the 1st Respondent by a Judicial panel of Inquiry and acceptance of that indictment by the State Government was not fatal to the eligibility of the 1st Respondent to participate in the 12th May, 2018 primary election.
4. Whether going by the avalanche of evidence manifesting in Exhibits and admission by declaration in affidavit and deposition in the affidavit in opposition to the Originating Summons it was right for the trial Court to hold that the burden of proving that the Respondent was appointed or employed as a Minister was not discharged.
The 1st Respondent’s brief raised the following issues for determination-
1. Whether the Lower Court was wrong by placing reliance on Section 318 (1) of the 1999 Constitution (as amended) and the available evidence before it, in coming to the conclusion that the 1st Respondent was not employed in the Public Service of the Federation and/or not a Public Officer and consequently he needed not resign his appointment as a Minister 30 days before the conduct of the Governorship primary Election of the 2nd Respondent held in Ekiti State on 12th May, 2018 and accordingly dismissed the suit. (Grounds 3, 4, 5, & 6)
2. Whether the Lower Court was not right by holding that the 1st Respondent cannot be disqualified from contesting in the 2nd Respondent’s Governorship Primary Election held in Ekiti State on 12th May, 2018, having not been convicted as required by law and in accordance with the dictates of fair hearing by a Court of law or a Judicial Commission of Inquiry. (Grounds 1 & 2)
The 2nd Respondent’s brief raised the following issues for determination-
1. Whether the 1st Respondent appointed to serve in the capacity of a Minister in charge of the Federal Ministry of Mines & Steel was a public officer employed in the public service of the Federation and was obliged to resign his appointment from office before participating or contesting in the 12th May, 2018 primary election conducted by the 2nd Respondent to determine its candidate for the 14th July 2018 Ekiti State Governorship Election (Grounds 3, 5, and 6 in the Notice of Appeal).
2. Whether the lower Court was right when it held that the Appointment failed to discharge the burden of proof that the 1st Respondent was appointed or employed in the Public Service. (Grounds 4 in the Notice of Appeal)
3. Whether the lower Court was right when it held that the purported indictment of the 1st Respondent by the Ekiti State Judicial commission of inquiry which was accepted by the State Government was not fatal to the eligibility of the 1st Respondent to participate in the 2nd Respondent primary election of 12th May, 2018 (Grounds 1 & 2 in the Notice of Appeal)
The 3rd Respondent’s brief raised the following issues for determination-
1. Whether the lower Court was right in holding that a person appointed to serve the Federation and Federal Republic of Nigeria in the capacity of a Minister in charge of the Federal Ministry of Mines & Steel of the Federal Republic of Nigeria was not a public officer and a person in public service by nature of his work schedule as a Minister and within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended the fifth schedule thereto and Judicial pronouncements
2. Whether the lower Court was right by its refusal to hold that the 1st Respondent, admittedly a Minister of the Federal Republic of Nigeria, appointed or employed was obliged to resign his appointment from office before participating or contesting in the 12th May, 2018 Primary election conducted by the 2nd Respondent in line with the 2nd Respondent Constitution and extant guidelines for the Nomination of Candidate for Public Office.
I will determine this appeal on the basis of the issues raised in the appellant’s brief.
I will determine issues 1, 2, and 4 together as they all related to the issue of the resignation of the 1st respondent from the office of Minister of Mines and Steel of the Federal Republic of Nigeria before the primary election.
I have carefully read and considered the arguments of all sides on these issues.
The part of the judgment of the trial Court complained of under these issues reads thusly:
Article 2 of the 2014 Guidelines provide:
The party prescribes that any aspirant seeking public office on the platform of the party shall not have:
– Remained as an employee of the public service within 30 days preceding the date of an election
Section 318(1) of the 1999 Constitution as amended defines public service thus:-
In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:
Public Service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as:
Having critically reviewed the above provisions, I am of the firm view that it is inapplicable in the circumstances of this case. In the first place the provisions of Section 318 of the Constitution stated above defines what being in the public service is. No where did the said provisions make reference to the office of a Minister which was what the 1st defendant was occupying. Secondly, the guidelines in question states that the person to be affected must be ?employed in the Public Service?. I do not believe that a Minister of the Federal Republic of Nigeria is employed in the public service as contemplated by the 2014 APC Party Guidelines.
A Minister though a Public Office holder, is simply appointed at the pleasure of the President and confirmed by the National Assembly. It is as bad or good as hearing of your removal as a Minster for the first time while watching the National News before being informed personally of same. In other words, he can be removed at will unlike an employee of the public service who has a somewhat secured tenure. In any event, the test of employment is whether one has a letter of employment. Since the plaintiff contends that the 1st defendant is an employee of the public service, he who alleges must prove. The burden is on the plaintiffs to produce before the Court the employment letter of the 1st defendant or to subpoena same.
Not having done so they have not provided the Court with sufficient materials to enable the Court move in the direction they wish the Court to move. The Court cannot therefore assist them.
It is not in dispute that the 1st respondent remained in office as Minister of Mines and Steel, when he contested on the 12th day of May, 2018 Primary Election and emerged winner of the Primary. He resigned as such Minster 4 days after the said primary election on the 16th day of May, 2018, but more than 30 days and before the 14th day of July, 2018 general election.
The part of the 2014 Guidelines said to have been breached by the 1st Respondent not resigning as Minister 30 days before 12th day of May, 2018, the date of the Primary election and remaining in office as such Minister till after the said Primary election is Article 2 which is reproduced by the trial Court in its judgment above. The wordings of that Article are clear. What it prohibits is an aspirant remaining as an employee in the public service within 30 days preceding the date of the election. The Article applies only to an aspirant who is an employee in the Public Service.
The trial Court has held that a Minister of the Federal Republic of Nigeria though a Public Office holder is not an employee of the Public Service and that he is simply appointed to the public service by the President and confirmed by the Senate of the Federal Republic of Nigeria. Learned Counsel for the appellant has argued that the trial Court was wrong to have excluded a person appointed to an office in the Public Service from the application of the Article and restricted its application to a person employed in an office in the Public Service, that appointment and employment mean the same and are used interchangeably and that the Article applies to an aspirant holding office in the Public Office, whether by employment or appointment. For this submission he relied on the decisions of this Court in Adeniyi v. Olujimi & Ors (CA/EK/CEN/EPT/7/2015; Judgment of 26 day of November, 2015) and OLORUNTOBA-OJU V. LAWAL & Ors (2003) 17 NWLR (Pt. 848) 67.
Learned Counsel for the 2nd Respondent argued that a Minister of the Federal Republic of Nigeria is not in the Public Service as he is a political appointee and that therefore Article 2 of the 2014 Guidelines is not applicable to the 1st respondent. Public Service, whether of the Federation or of a State, is defined by S.318 of the 1999 Constitution as Service in any Capacity in the Government of the Federation or of the State, and includes but is not limited to the service listed therein. The opening sentence in that definition is all embracing or inclusive of all services of the Federation or of the State in any capacity, be it judicial officer or member of any of the Federal Legislative Houses or any officer in the Executive Arm of Government. The all-embracing implication of the phrase ‘any capacity’ is not eroded by the listing of specific capacities in the service of the State in sub-paragraphs (a) to (g) that are also included in it. These sub-paragraphs do not limit the capacity in which one can be engaged in the service of the State to the ones listed therein. This is obvious from the clear words of the provisions of S.318(1) defining Public Service of the Federation or of the State providing for service of the Federation or of the State in any capacity including those listed in the sub-paragraphs therein.
The use of the word ‘includes’ in listing those specific capacities show that the list is not exhaustive as it is not limited only to those mentioned. See Black’s Law Dictionary, 9th Ed., P.831 which defines the word include thusly- ‘To contain as a part of something. The participle including typically indicates a partial list’.
The Supreme Court in Anyah v. Iyayi (1993) 9 SCH 53 interpreted Public Service of the Federation in S.277(1) of the 1979 Constitution which is the same with S.318(1) of the 1999 Constitution. It held that ‘Public Service of the Federation means the service of the federation in any capacity in respect of the Government of the Federation.’ This decision applies with equal force to the definition of the phrase ‘public service of a state’. This Court is bound to follow this decision in keeping with the principle of stare decisis. See also Ukachukwu v. Ojo (CA/A/599/2012 of 21-5-2018) and Nyame v FRN in which this Court interpreted and applied S.318(1) of the 1999 Constitution in similar vein. Even though it was applied in respect of public service of the Federation or that of a state to show that a judicial officer of a Federal Court or the Governor of a State, is in the public service of the Federation or of the State, though not listed in the expressly listed capacities therein, these decisions provide useful guides in this case. I have no reason to depart from them.
So the Minister of the Federal Republic of Nigeria is an office in the Public Service of the Federation. Service in that capacity is Public Service of the Federation. But is he an employee in the Public Service? The answer to this question would depend on what the word ’employee’ used in Article 2 of the 2014 Guidelines means. The Article did not define the word ’employee’. So resort can be made to the ordinary, literal and grammatical meaning of the word. The Chambers Dictionary defines the noun “employee” as a person employed for wages or salary. The fact is common knowledge and is not reasonably open to question that a Minister is not employed for wages or salary. He has no permanent and established Service Contract in the public service. So service as Minister is not based on a permanent established contract of service.
This Court in Ojo v. Bayo & Ors (supra) regarded persons on permanent and established service on the basis of contracts of service as Civil Servants and that both those on service contracts and those who are not belong to the Public Service. The exact of the decision of this Court on this point read thusly- ‘This clearly shows that the term ‘Civil Service of the Federation’ is narrower than the term ‘public service of the Federation. In fact, it is clear from the definition of public service of the Federation reproduced supra that it includes service in the ‘Civil Service of the Federation.’ I am however of the firm view that even though a Civil Servant is a public servant, it is not every public servant that is a civil servant.’
In PPA v. PDP (2009) LPELR 4865 (A) this Court held that- ‘The fact that a person earns salary and allowances, lives in government quarter and drives in government vehicle does not, without more, make such a person an employee of government in the public service of the State as provided by the Constitution’. Per Ariwoola JCA (as he then was).
It is for the above reasons that I refuse to follow this Court’s decision in Commissioner for Local Government and Chieftaincy Affairs V. Onakade (2016) LPELR-41133) (A) cited by Learned Counsel for 1st respondent and similar decisions such as Dada v. Adeyeye on the ground that they were decided per in curiam.
It is clear from the forgoing that the 1st respondent as Minister of Mines and Steel, even though, in the Public Service of the Federation was not an employee in the Public Service. Therefore Article 2 of the 2014 Guidelines was not applicable to him.
In the light of the foregoing issues Nos. 1, 2, and 4 are resolved in favour of the 1st respondent.
Let me now determine issue No. 3 which asks- ‘Whether the lower Court was right by its reliance on extraneous materials and law other than the 2nd Respondent Constitution and Guidelines in holding that the indictment of the 1st Respondent by a Judicial panel of Inquiry and acceptance of that indictment by the State Government was not fatal to the eligibility of the 1st Respondent to participate in the 12th May, 2018 primary election.’
The part of the judgment of the trial Court complained against under this issue reads thusly:
There are two issues in this case as I see it. The first is whether the 1st defendant can be disqualified on the basis that he had been convicted by a judicial Commission of inquiry and the report accepted by Government and White paper published. The defence of the 1st defendant is that the said Report of the Commission of inquiry has been nullified by the High Court of Federal Capital Territory Abuja and the said White Paper accepting the recommendations therein. I have perused the said Exhibit JFK 3 and found as correct the fact that the said judgment was delivered on the 3rd of July 2018 whereas the election the subject matter of this suit from the evidence before the Court was conducted on the 5th and 12th of May, 2018.
I am in complete agreement with Adeniyi, Esq., that the said judgment cannot apply retroactively and I so hold. Learned Counsel has also urged this Court to hold that the said Exhibit JKF 3 was made without jurisdiction and therefore this Court should declare it a worthless paper. Let me say that this Court is of coordinate jurisdiction with the Federal Capital Territory Abuja that delivered the said judgement; this Court cannot therefore sit on appeal over the judgment of that Court.
Now to answer the question of whether the 1st defendant can be disqualified on the basis that he had been convicted by the Commission of Inquiry. Although, I have seen evidence of an indictment by the Judicial Commission of Inquiry and the Ekiti State Government White Paper accepting same. Our law is firmly settled on the procedure that must be adopted in quasi or criminal trial proceeding. I am not convinced that the indictment satisfies the definition of a conviction before a Court of law or judicial tribunal sufficient to disqualify the 1st defendant.
Let me say with respect that for a conviction to take place, a number of elements must be present. There has to be a criminal trial triggered by a criminal charge filed, and requisite proofs of evidence served on the person in question, in this case the 1st defendant, affording him adequate opportunity to defend himself of those criminal charges. Looking at all the evidence before me filed by the parties herein and the submissions of counsel, I am not satisfied that this condition was met in this case. I am therefore of the view that there is no cognizable conviction in the manner recognizable by law on the basis of which the 1st defendant can be disqualified from contesting the primaries of the 2nd defendant held on the 5th and 12th of May, 2018 and I so hold?.
Learned Counsel for the appellant argued that by virtue of the provisions of Article 2 Paragraph 6 of the 2014 Guidelines, an aspirant indicted by a Judicial Commission of Inquiry and which said indictment has been accepted by the State or Federal Government is not eligible to participate in the primary election of 12th May, 2018 organized by the 2nd respondent, that the word ‘convicted’ in Article 2 is not intended to mean a conviction of the standard of a crime requiring the preferment of a charge and a trial before a Court, that the Guidelines provide that violation of any provision of the Guidelines would attract automatic disqualification, that the trial Court relied on extraneous materials and law in interpreting the 2nd respondent’s Guidelines.
Learned Counsel for the 1st respondent argued that the 1st respondent having not been convicted for an offence related to embezzlement or fraud by a Commission of Inquiry or Tribunal and in fact for any offence at all, has not violated Article 2 of the Guidelines and was therefore eligible to contest or participate in the 12th May, 2018 primary election.
Learned Counsel for the 2nd respondent argued that, there is no evidence before the Court that the 1st respondent was convicted by the Commission of Inquiry constituted by Ekiti State Government, that conviction referred to in the party’s Guidelines means a decision of guilt for the offence of embezzlement or fraud arrived at by a Court or tribunal constituted for trial of criminal offences, that in the instant appeal, the purported proceedings of the Commission of Inquiry constituted by Ekiti State Government is not a criminal proceeding or trial of the 1st respondent or any other persons, that therefore there was no conviction and there could not have been any conviction of anybody by the Commission. The document before the Court is not the report of the judicial commission of inquiry but a white paper of Ekiti State Government which contains its view on the recommendation of the Judicial Commission of Inquiry, that is to be noted that in the White Paper there was no conviction of anybody for a criminal offence, that therefore the contention of the Appellant that the 1st Respondent was convicted by the Commission is not only frivolous, it is malicious and should be discountenanced.
Learned Counsel for the 3rd respondent repeated the submissions made on behalf of the 1st and 3rd respondents.
Let me now determine the merits of the above arguments.
Article 2 of the 2014 Guidelines provides that: ‘In conformity with the provisions of the Constitution of the Federal Republic of Nigeria, the qualifications for aspirants to respective offices in State Houses of Assembly, the House of Representatives, Senate, Governor and for President, the party prescribes that aspirants seeking public office on its platform shall be:
1. Nigerian Citizens
2. Educated up to at least School Certificate level or its equivalent.
3. Has attained the age of 30 years, for a seat in the Senate or the Governorship, the aspirant has attained the age of 35 years and for the President, the aspirant has attained the age of 40 years.
The party prescribes that any aspirant seeking public office on the platform of the party shall not have:
Been adjudged to be a lunatic under any law in Nigeria or otherwise declared to be of unsound mind.
Been under a sentence of death imposed on him by any Court of law or offence involving dishonesty or fraud.
Been convicted and sentenced for an offence involving dishonesty or found guilty of contravention of the Code of Conduct within a period of 10 years before the date of the election.
Been adjudged or declared bankrupt under any law.
Remained as an employee of the Public Service within 30 days preceding the date of an election.
Be a member of a secret society
Been convicted of embezzlement or fraud by a Judicial Commission of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, or any other Law by the Federal or State Government which conviction has been accepted by the Federal or State Government?
Both sides agree that the 1st respondent was indicted by a Judicial Commission of Inquiry. One of the two grounds upon which the appellant challenged the 1st respondent?s qualification to contest the 2nd respondent’s primary election or be nominated as its candidate for the general election is that he was indicted by a Judicial Commission of Inquiry. It was indictment and not conviction for an offence that the appellant relied on in his originating summons to contend that the 1st respondent was disqualified from election to the office of Governor. This is clear from Question 2 in the Originating Summons.
The said question raised for determination in the originating summons on the basis of this Ground reads thus: ‘Whether by virtue of All Progressive Congress Constitution and particularly Articles 2 and 5 of All Progressive Congress 2014 Guidelines for the nomination of candidates for public office as applicable to the A.P.C Governorship primaries conducted on the 12th May, 2018, at Damilek Event Centre, Ado-Ekiti for the purpose of determining or nominating the 2nd Defendant candidate for the 12th July, Ekiti State Governorship election, the 1st Defendant having been indicted by Rtd. Hon. Justice Oyewole judicial panel of Enquiry was disqualified to contest and participate in the said All Progressives Congress Governorship primary of 12th May, 2018 as an aspirant in that election’.
Paragraphs 18 and 19 of the affidavit in support of the summons contain the facts relied on in support of the said Question 2. Conviction of the 1st respondent is not even alleged therein. The exact s of those paragraphs are reproduced here as follows-
18. That the said Justice Silas Bamidele Oyewole Commission of Inquiry after its sittings, deliberations and consideration of issues and evidence before it, found the 1st Defendant guilty of embezzlement/misapplication of public fund, indicted him and banned him, the 1st Defendant from occupying any public office for 10 years, apart from recommending the 1st defendant for criminal prosecution.
19. That the findings/recommendations of the said Justice Silas Bamidele Oyewole Commission of Inquiry were accepted by Ekiti State Government and gazette 15th January, 2018 in Ekiti State of Nigeria official gazette No. 2 Vol.
1. The said official white paper is hereby annexed to this affidavit as Exhibit D.
The Report of the Commission of Inquiry and the Ekiti State Government white paper are attached to the affidavit in support of the originating summons and the claimant’s further and better affidavit as exhibits 06 and 07.
The Report contains adverse findings and recommendations against several persons including the 1st respondent which were accepted in the white paper. There is nothing in the report and white paper that show or suggest that the 1st respondent was tried, convicted and sentenced for any offences. Part of the adverse findings is that criminal prosecutions be initiated against him for committing the offences of embezzlement of public funds and fraud. There is nothing to show that he has been so prosecuted. The exact of the relevant recommendations read thusly
xvi. RECOMMENDATION
Both His Excellency, Dr. John Kayode Fayemi and the Commissioner for finance, Mr Vincent Dapo Kolawole are recommended as unfit to hold any public office in the State for their refusal to appear before this Commission of Inquiry, even after the determination of the case challenging the inauguration of this Commission of Inquiry before Ekiti State High Court, their disrespect to the constituted authority and the undignified roles they played in the whole contracts saga which were obviously against the interest of the State they were supposed to protect, they should be barred from holding public offices for a specified period? See page 432 of the Record.
xvii. RECOMMENDATION
His Excellency, Dr. John Kayode Fayemi, Mr. Vincent Dapo Kolawole and any other person indicted herein should be prosecuted for their ignoble roles.? (See page 434 of the Record)
An indictment is not a conviction. It falls far short of a conviction. It cannot be a basis for the invocation of Article 2 of the 2014 Guidelines which applies only where the aspirant had been convicted. An indictment is a preliminary finding that there is reasonable basis to believe or suspect that a person has committed an offence and that criminal proceedings be initiated against him in a Court of competent jurisdiction. This was what the Commission of Inquiry did. It recommended the Criminal Prosecution of the 1st respondent. A conviction of the 1st respondent for any offence can only arise after his trial for the said offence. Without the trial having taken place, he cannot be convicted. See Akwa Ibom State House of Assembly v. Okon (2016) LPELR-41154 (CA) where this Court distinguished between indictment and conviction thusly:
The word ‘indictment’ is defined in Black’s Law Dictionary, 9th Edition as:
1. The formal written accusation of a crime, made by a grand jury and presented to the Court for prosecution against the accused person
2. The act or process of preparing or bringing forward such a formal accusation.
The word has also received substantial judicial interpretation. In Amaechi v. INEC (2008) 5 NWLR (PT 1080) 227, the Supreme Court, per M Mohammed, JSC (now CJN) the following explanation was given: “By definition, the word ‘indictment’ simply means a formal accusation; the written accusation against someone who is to be tried by a Court of law. Evident from the definition of the word ‘indictment’ is the fact that an indictment does not involve conviction or punishment. An indictment formally accuses a person of a criminal offence. It is therefore no more than an allegation. The person accused is now handed over to the Courts for prosecution.”
A Judicial Commission of Inquiry is not a Court of competent jurisdiction. It is legally incapable of trying any person for any criminal offence, unless a statute confers in that jurisdiction it cannot convict a person for committing an offence, it is a fact finding body. Its adverse findings and recommendation cannot amount to the conviction of a person for the commission of an offence. See Amaechi V INEC (2008) 5 NWLR (Pt. 1080) 227, AC v. INEC (2007) 12 NWLR (Pt. 1048) 220 @ 259 – 260 and Abdulkarim & Ors v Shinkafi & Ors (2008) LPELR-3555 (CA). This Court in Idris v. Government of Kogi State & Ors (CA/A/172/2017 unreported judgment delivered on 16-7-2018) per Agim JCA held concerning the status of a Commission of Inquiry and its findings and recommendations thusly:- ‘A Commission of Inquiry under the Commission of Inquiry Law is a fact finding body set up by the executive of arm of government to investigate the state of affairs in the state generally or in particular areas, the official conduct of Heads of Government, heads and other officers of government ministries, departments and institutions in the administration of government, its ministries, departments and institutions, the management of public funds and properties and any other issue of urgent public importance for the public welfare, peace and security.
The purpose of the investigation is to find out the facts on the subject matter of inquiry. At the conclusion of its inquiry or investigation, it is usually required to present a report to the appointing authority, which report should contain the findings of facts, the basis of such findings and its recommendation of what action government should take. The government would produce a white paper in which it would state which of the recommendations it accepts or rejects and directing what should be done concerning the recommendations it has accepted.
A Commission of Inquiry carries out the investigation and gathering of facts on the subject of inquiry. Even when it is engaged in the gathering of facts on administration of the state government or any government ministry or department or institution by a public officer, it is not trying the person for any misconduct or criminal offence. It does not engage in the trial of any person for anything. It merely gathers facts on how the state government or ministry or department or local government was administered or managed by the said public office holder and on any subject of the inquiry.
Even if it makes findings of facts that are adverse to a person, such adverse findings do not amount to a conviction for an offence or determination of his civil right and obligation. They remain mere finding of facts on the basis of which it would make recommendations to the appointing authority who may accept or reject them. If it rejects them, the matter ends there. If it accepts them and decides to take necessary action on the accepted recommendation, the white paper accepting the recommendation can be challenged in Court. This Court in Bajowa V FRN (2016) LPELR ? 40229 (CA) following the Supreme Court decisions in Cookey V Fombo (2005) 15 NWLR (Pt 947) 187, Governor of Oyo State V Folayan (1995) 1 NWLR (Pt 413) 292 at 328, Tao & Sons Industries Ltd V Governor of Oyo State (2011) 6 NWLR (Pt 1242) 115 and Aremo II V Adekanye (2004) 13 NWLR (Pt 891) 572 to hold thusly- ‘In COOKEY V FOMBO (2005) 15 NWLR (947)187, the Supreme Court held that recommendation of a committee has no binding force and cannot ground a cause of action without a law or a white paper.
I agree with the Defendants’ counsel that the holding did not arise directly from any of the two issues for determination of the appeal. However, that dictum represents the law. In Governor of OYO STATE V. FOLAYAN (1995) 1 NWLR (413) 292, 328, ONU JSC, stated as follows; ‘The government having not yet accepted the recommendations of the Commission of Enquiry’ those recommendations are legally not binding on the Government and the parties until accepted.’ In TAO AND SONS INDUSTRIES LTD V. GOVERNOR OF OYO STATE (2011) 6 NWLR (1242) 115 this Court held that; ‘The Supreme Court acknowledged the significance of White Paper in the case of COOKEY V FOMBO (supra) when it held that the 1st Defendant could not found an action against a third party on the recommendation of a Panel of Inquiry that had not been published in a white paper’ It cannot be in doubt that where a government sets up a panel of inquiry, there must be some overt act by the government to signify its acceptance or rejection of the Panel’s recommendations. The usual way of doing so is by the issuance of a white paper.
The White Paper is notice to the whole world of the position taken by the government of the relevant report. The reason is that a government that sets up commission of inquiry is at liberty to reject or accept the recommendation of the commission. See AREMO II v ADEKANYE (2004) 13 NWLR (891) 572. So the commission’s recommendations amount to nothing until accepted by the government in a white paper.
The accepted recommendations are not enforceable like a Court decision. They are administrative decisions, on the basis of which disciplinary processes, criminal processes and public funds and properties recovery actions can be initiated by the executive government. So a Commission of Inquiry is not a Court and does not pretend to be one. It is not a criminal investigation agency such as EFCC, ICPC and Police. Its findings of facts would make easier the work of criminal investigating agencies as it would readily provide all the facts that would enable them decide whether there is a reasonable basis for an investigation and prosecution of any person for an offence. In Baba V NCATC (supra) the Supreme Court held thusly- ‘the Panel of Inquiry, not being a Court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross examine other persons who make allegations or present memoranda at the inquiry. But once the Panel makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his service.
Where those points amount to crime, the case must be reported to the police for investigation and possible prosecution.
His lordship continued further; the term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned counsel for the appellant, the question of fair-hearing in terms of Section 33(1) of the Constitution, 1979, did not arise under the Afinni. In the Afinni Panel, the appellant was not on trial.
No one was yet on trial. This is obvious from the terms of reference, Exh.C., and the Report, Exh. ‘E’. In such a proceeding the need for a hearing is satisfied by an opportunity to make written representations to the investigating body. See on this R. v. Judge Amphlett (1915) 2 K.B.223; R. v. Housing Appeal Tribunal (1920) 3 K.B. 334; Local Government Board V Arlidge (1915) A.C.120. Indeed, in Miller v. Minister of Health (1946) K.B.626, it was held that at that stage, the administrative body could get information from other sources, and was not obliged to disclose it to the person to be affected by it although it might be prejudicial to his own case. See also Summers v. Minister of Health (1947) 1 All E.R.184. I shall refer to and agree on the point with the opinion expressed by the Privy Council per Viscount Haldane in Local Government Board v. Arlidge (1915) A.C.120, at pp.132-133 where he stated: ‘In Board of Education v. Rice (1) he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duly to act in good faith, and to listen fairly to both sides, in as much as that was a duty which lay on everyone who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath; and need not examine witnesses. It could, be thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the Board failed in this duty, its order might be the subject of certiorari and it must itself be the subject of mandamus. See also Amaechi V INEC (supra).
Question 2 of the originating summons as framed was bound to be resolved in favour of the 1st respondent. ?In any case, the opening words of Article 2 states that its contents are in conformity with the provisions of the 1999 Constitution of the Federal Republic of Nigeria. So assuming the 1st respondent was convicted by the Judicial Commission of Inquiry for embezzlement of public funds or fraud, such a conviction is not provided for in Section 182(1) of the 1999 Constitution among the facts that can disqualify a person for election to the office of Governor.
The said Section 182(1) of the 1999 Constitution reads thus:
182(1).No person shall be qualified for election to the office of Governor of a State if-
(a) Subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country, or
(b) He has been elected to such office at any two previous elections, or
(c) Under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind, or
(d) He is under a sentence of death imposed by any competent Court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any Court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a Court or tribunal, or
(e) Within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence, involving dishonesty or he has been found guilty of the contravention of the Code of Conduct, or
(f) He is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country or
(g) Being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election or
(h) He is a member of any secret society, or
(i)(Deleted)
(j)He has presented a forged certificate to the Independent National Electoral Commission.
Provisions exactly similar to Article 2 of the 2014 Guidelines were contained in S.182(1)(i) of the 1999 Constitution before the First Alteration of the Constitution, though the Constitution used the word indicted and not convicted. However the First Alteration deleted the said S. 182(1)(i) from the Constitution . It appears that the 2nd respondent made the provision of Article 4 concerning conviction by a Commission of Inquiry in response to the Supreme Court decision in Amaechi V INEC that indictment is not conviction. It is obvious that Article 2 is not in conformity with Section 182(1) of the Constitution by providing that conviction by a Judicial Commission of Inquiry would disqualify an aspirant from seeking public office on the platform of the 2nd respondent. It cannot disqualify a person for election to the office of Governor on the platform of the 2nd respondent since it is not provided for in Section 182(1) of the 1999 Constitution.
The only conviction that S.182(1) recognises as capable of disqualifying a person for election to the office of Governor is that by a Court or Tribunal of competent jurisdiction. It is expressly provided for in S.182(1)(a) of the Constitution. A Commission of Inquiry is not a Court of competent jurisdiction. Article 2 set the yardstick for its own assessment by its opening words thusly- In conformity with the provisions of the Constitution of the Federal Republic of Nigeria. It followed these opening words with statements of the requirements of qualification and disqualification for election to office of Governor on the platform of the 2nd respondent. The Supreme Court in the case of Amaechi v. INEC (Supra) the Supreme Court per Oguntade JSC) at pages 306 to 307 had course to interpret the provision of Section 182(1)(i) of the 1999 Constitution and held that any indictment by the Commission of Inquiry or Panel is not capable of disqualifying any person aspiring to contest for any public office.
It is noteworthy that the trial Court held that the Judgment of the High Court of Federal Capital Territory at Bwari in Exhibit JFK3 which nullified the said Commission of Inquiry Report and Government White Paper thereon, cannot apply retroactively to 12-5-2018 the date of the primary election in this case. Since there is no appeal against this holding, I cannot say anything on it. I therefore leave it as it is.
Generally, a party’s Constitution and Guidelines on qualification or disqualification for election to the office of Governor or any other elective office on its platform to be valid, must conform to the provisions of Section 177 and 182(1) and similarly provisions of the 1999 Constitution. A political party’s Guidelines on the process of its primary elections of its candidate of general election must conform with the 1999 Constitution and the Electoral Act 2010 as amended.
In the light of the foregoing, issue No.3 is resolved in favour of the 1st respondent.
Having resolved issues Nos. 1, 2, 3 and 4 in favour of the 1st respondent, there is no need to determine the lone issue raised for determination in the respondent?s notice to affirm the judgment of the trial Court on other grounds.
On the whole the appeal fails as it lacks merit. It is accordingly dismissed. The judgment of Federal High Court at Ekiti in Suit No. FHC/ABJ/CS/663/2018 delivered on 10-12-2018 by U.N. Agomoh J, is hereby affirmed and upheld.
ADAMU JAURO, J.C.A.: I was afforded a copy of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in agreement with the reasoning and conclusions contained therein, to the effect that the appeal is lacking in merit ought to be dismissed.
The two vital points canvassed as complaints in this appeal are:
(i) Failure to resign as Minister of the Federal Republic of Nigeria 30 days to the date of Primary Election and;
(II) Indictment by a judicial commission of inquiry.
It is noteworthy to restate that the post of Minister is a political office, whose appointment is at the pleasure of the President of the Federal Republic of Nigeria, hence not a person in the Public Service of the Federation. The cumulative interpretation of Section 182(1)(g) and Section 318(1) of the 1999 Constitution (as altered), is to the effect that the term public officer should only relate to the holder of offices/reflected in Section 318 being employees whose appointments enjoy statutory favour because it is only them that have conditions of service and or letters of appointment stipulating how many years they are to spend in service, at what age they should retire, number of months to be given as notice etc. Hence even though a Civil Servant is a Public Servant, it is not every public servant that is a civil servant. A Minister is therefore not a public officer who should resign his position before contesting in an election within the contemplation of the aforementioned section of the Constitution. See Orji Vs Ugochukwu (2009) 14 NWLR (part 1161) 207 at 293, Dada vs Adeyeye (2005 6 NWLR (part 920) 1 at 19-20, Asogwa Vs Chukwu (2003) 4 NWLR (part 811) 540 at 546, Gov. Ebonyi State vs Isuama (2004) 6 NWLR (part 876) 511 at 528, Ojukwu v Yar’adua (2008) 4 NWLR (part 1078) 435.
As for the second complaint on indictment by a judicial commission of inquiry, it is important to point out that the position has changed with the First Alteration to the Constitution, which deleted Section 182(1) (i) of the 1999 Constitution. See Section 19 of Act No. 1 of 2010. The opening paragraph of Article 2 of the 2014 Guidelines made a preamble that it was made in conformity with the provisions of the constitution. The provision as to indictment by Judicial Commission having been deleted from the Constitution, it is therefore of no moment in Article 2 of the 2014 Guidelines.
In view of the foregoing and the fuller reasons contained in the lead judgment which I adopt as mine, I join my brother in dismissing the appeal which is devoid any merit and substance. I abide by all consequential orders made.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasonings and conclusion reached therein. I have nothing to add. I too dismiss the appeal as unmeritorious.
Appearances:
Chief A.A. Adeniyi, Esq. with him, Niyi Idowu, Esq., Gani Faniyi, Esq., Polycarp Nwachukwu, Esq., Adetunji Oso, Esq., Sanni Yakubu, Esq., Dr. Ife Arowosoge ,Esq., Umar Abdulhameed, Esq., Kariakitei Kokowei, Esq., S.B. Oladeinde, Esq., Abiodun Ajibade, Esq., Omotayo Oloruntoba, Esq., Michael Olaleye, Esq., Tolu Olowoyo, Esq.For Appellant(s)
Chief R.O. Balogun, Esq., with him, A.S Aribasoye, Esq., Samson Ayatesi Aina, Esq. for the 1st respondent.
Lawal Pedro, SAN with him, A.P. Ameh, Esq., C.O. Oni, Esq., T.O. Sanni, Esq. for the 2nd Respondent.
Chief J. Akingbola Akinola, Esq., with him, Nnamdi Mbanefo, Esq. for 3rd RespondentFor Respondent(s)
