FEDERAL REPUBLIC OF NIGERIA v. ALH. ISA SADIQ ACHIDA & ANOR
(2018)LCN/12186(CA)
On Wednesday, the 28th day of November, 2018
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/178C/2017
RATIO
CONSTITUTIONAL LAW: PREROGATIVE OF MERCY
“There is an Advisory Council on Prerogative of Mercy in Sokoto State established by the Advisory Council on the Prerogative of Mercy (Establishment) Law, Cap 108, Laws of Sokoto State. The word used in Section 212(2) of the Constitution is “shall” and from the manner of its usage, it connotes compulsion. It is thus mandatory for the Governor of a State to consult with its State’s Advisory Council on Prerogative of Mercy before exercising the power of pardon. It is my understanding that the essence of the requirement for consultation is to guide and guard the exercise of the power and save it from arbitrariness, impunity, abuse and political aggrandizement. It is to prevent the power from being turned into an avenue for dispensing political favors and to ensure that it is exercised only in deserving cases. It is my view that it is appropriate and show political correctness to state on the Instrument of Pardon that the power was exercised in consultation with the Advisory Council on Prerogative of Mercy.” HABEEB ADEWALE OLUMUYIWA ABIRU J.C.A.
EVIDENCE: PRESUMPTION OF REGULARITY
“Indeed, as rightly submitted by the Respondents, a presumption of regularity attaches to official acts by virtue of Section 168 of the Evidence Act, 2011, which presumption is rebuttable.” PER JUMMAI HANNATU SANKEY, J.C.A.
Before Their Lordships
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
FEDERAL REPUBLIC OF NIGERIA Appellant(s)
AND
1. ALH. ISA SADIQ ACHIDA
2. ALH. HABIBU HALILU MODACHI Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Ruling of the High Court of Justice, Sokoto State sitting at Sokoto delivered on 29th June, 2017, Coram: Abbas, J. Therein, the lower Court discharged and acquitted the Respondents of the amended charges filed against them in Case No. SS/33C/2009 on the ground that they had been granted an unconditional pardon by the Governor of Sokoto, Rt. Honourable Aminu Waziri Tambuwal, CFR, pursuant to an instrument of pardon dated 29th September, 2016, (Exhibit USP annexed to the Respondents affidavit in support of his motion before the lower Court).
The brief facts of the case leading to the Appeal are that seventeen (17) persons, including the Respondents herein, were standing trial before the lower Court on a one hundred and forty-four (144) count Amended Charge dated 11th January, 2010, for sundry offences including conspiracy, breach of trust and receiving stolen property punishable under various provisions of the Penal Code Law applicable to Sokoto State of Nigeria. The 1st Respondent was charged under Counts 110 and 101, while the 2nd Respondent was charged under Counts 11-34; 39-64 and 68-69.
Trial commenced in earnest and the prosecuting Counsel, on behalf of the Appellant, had already adduced evidence through six witnesses, while the 7th witness was still testifying when the Respondents, through their Counsel, filed a motion on notice dated 24th April, 2017. Therein, they prayed the Court inter alia for an order discharging and acquitting the Respondents from all the counts of charge on the ground that they had been granted an unconditional pardon by the Governor of Sokoto State vide an instrument of pardon which was brought before the Court, Exhibit USP. The instrument of pardon issuing under the hand of the Governor of Sokoto State, Rt. Hon. Aminu Waziri Tambuwal, granted pardon to the Respondents therein alongside four other accused persons, namely:
i. Alhaji Umaru Kwabo A.A.
ii. Muhammadu Maigari Dingyadi
iii. Hon. Habibu Halilu Modachi
iv. Alhaji Isah Sadiq Acida
v. Alhaji Muhammadu Tukur Alkali
vi. Alhaji Bello Isah
The pardon is couched in the following terms:
NATURE OF PARDON
The indictment by the Report of Alhaji Muhammad Aminu Ahmads Commission of Inquiry and the Government White Paper dated 28th October, 2009 and Six (6) of them are hereby granted Unconditional State Pardon for the offences they are concerned with arising from the report and white paper and any criminal offence they might have been accused of against the laws of Sokoto State.
DATED 29th DAY OF September, 2016
(SIGNED)
RT. HON. AMINU WAZIRI TAMBUWAL CFR
(MUTAWALLEN SOKOTO)
GOVERNOR SOKOTO STATE
The Respondents herein are the 3rd and 4th beneficiaries of the pardon.
In opposition to the Respondents’ motion, the Appellant’s Counsel filed a counter affidavit on 15th May, 2017 and a further affidavit was filed by the Respondent. The motion was argued on 25th May, 2017, after which the lower Court delivered its Ruling on 29th June, 2017, wherein it granted the reliefs as prayed. The lower Court then discharged and acquitted the Respondents of the said counts of charge on the basis of the unconditional pardon granted by the Governor of Sokoto pursuant to the instrument of pardon dated 29th September, 2016, Exhibit USP. Dissatisfied with the Ruling of the lower Court, the Appellant filed this Appeal on 25th September, 2017. Pursuant to the leave of Court granted on 26th March, 2018, the Appellant filed an Amended Notice of Appeal on 3rd April, 2018.
At the hearing of the Appeal on 17th October, 2018, Chile Okoroma Esq. (Director of Legal & Prosecution Department with the EFCC), appearing with M.S. Abubakar Esq., (Chief Legal Officer), Aishatu Ibrahim Esq., (Senior legal Officer) and Musa Isah Esq. adopted the Appellants Brief of argument filed on 21-05-18, deemed filed on 17-10-18 and settled by Chile Okoroma Esq., in urging the Court to allow the Appeal and set aside the Ruling and consequent order of the trial Court.
In like manner, S. Atung Esq. appearing with T.O. Adeboye Esq. and Q.E. Sylvester Esq., adopted the Respondents Brief of argument filed on 22-06-18, deemed filed on 17-10-18 and settled by Samuel Atung Esq., in urging the Court to dismiss the Appeal. In further adumbration in respect of his submissions under all three issues for determination in the Respondents Brief of argument, Counsel relied on the decision of this Court in a sister Appeal in the case of FRN V Alhaji Tukur Alkali & another (Unreported)Appeal No. CA/S/179C/2017,Judgment delivered on 11-07-18.
In a brief oral reply on point of law, the Appellants Counsel, Mr. Okoroma, having just been served the Respondents Brief of argument, conceded that the issue raised in this Appeal wherein the Appellant has challenged the Governors power to grant pardon in these circumstances, was not raised before the trial Court. Consequently, the Appellant had filed a motion on 22-10-18 seeking leave to raise and argue the point as a fresh issue. However, that this Court felt differentl and so had held that the fresh issue sought to be raised, being a constitutional issue, could be raised without the leave of Court being sought and obtained. Thus, the relief seeking leave was abandoned. Counsel submits that he also agreed with this Court in this regard because the issue is a fundamental and Constitutional one which cannot be waived, even by the consent of parties. He submits that parties cannot also by consent grant to the Governor of a State the power he does not have and which the Constitution has not given him. Reliance is placed on Ariori V Elemo (1983) 552 SC 1; & AG Plateau State V Goyol & others (2007) LPELR-1(CA).
In addition, Counsel submits that even though the Respondents Counsel has invited the Court to follow the decision of this Court rendered in the case of FRN V Alkali (supra), the Appeal was decided by a three-man Panel of this Court, in which one of the Justices on the Panel issued a dissenting Judgment. He points out that the Panel hearing this Appeal is a full Panel of the Court and is therefore not bound by the earlier decision of the Court. The Court is thus urged not to follow the earlier decision, and it is also entitled to depart from its previous decision.
Further, Counsel urged the Court not to be persuaded by the decision of the US Court in Ex Parte A.H. Garland (1865) U.S. Supreme Court Reports, 18 Lawyers Edition, Wallace 3-6 at page 300 cited at page 10 of the Respondents Brief. He argued that the Court in the case of Solola V State (2005) 2 NWLR (Pt. 937) 460 at 488-489, paras G-B specifically refused to follow it. Instead, the Court therein expressly stated that its decision (given in Solola V State (supra) is for future guidance.
The Appellant, in its Brief of argument, formulated the following three issues for the determination of the Appeal:
1. Whether the trial Court was right when it discharged and acquitted the Respondents from the charges against them in the Case No. SS/33C/2009 on the ground that they have been granted unconditional pardon by the Governor of Sokoto State when the Respondents had not been convicted of any offence by any Court. (Grounds one and two)
2. Whether the trial Court was right when it discharged and acquitted the Respondents of the charges against them in Case No. SS/33C/2009 on the ground that they have been granted unconditional pardon by the Governor of Sokoto, despite the fact that the instrument of pardon, Exhibit USP, clearly showed that the Governor of Sokoto State, Rt. Honourable Aminu Waziri Tambuwal, did not comply with the condition precedent of consulting with the Advisory Council of Sokoto State on the Prerogative of Mercy under the Advisory Council on the Prerogative of Mercy (Establishment) Cap. 108, Laws of Sokoto State of Nigeria, before exercising his power to grant pardon, as required under Section 212(2) of the Constitution of the Federal Republic of Nigeria, 1999. (Ground three)
3. Assuming without conceding that the Governor of Sokoto State could grant pardon to the Respondents when they had not been convicted of any offence by any Court, whether the trial Court was right when it held that the instrument of pardon, that is Exhibit USP, extended or included the offences for which the Respondents were standing trial, that is Charge No. SS/33C/2009, when the instrument did not specify or expressly state that the pardon was for the said offences. (Grounds four and five)
On their part, the Respondents in their Brief of argument crafted the following issues for determination:
i.Whether the trial Court was right in discharging the Respondents from the charges against them in Case No. SS/33C/2009 on the ground that they have been granted unconditional pardon by the Governor of Sokoto State. (Grounds one and two)
ii. Whether it is a condition precedent for the validity of the instrument of pardon, Exhibit USP that it is mandatory for the Governor of Sokoto State to state on the face thereof that he has consulted with the State Advisory Council on the Prerogative of Mercy before the making thereof. (Ground three)
iii.Whether the instrument of pardon is couched in wide terms as to cover the offences the Respondents were standing trial in Case No. SS/33C/2009. (Grounds four and five)
The issues are virtually the same in content, leading me to simply adopt the Appellants more inclusive issues in the determination of the Appeal.
Issue one – Whether the trial Court was right when it discharged the Respondents from the charges against them in Case No. SS/33C/2009 on the ground that they have beengranted unconditional pardon by the Governor of Sokoto State, when the Respondents had not been convicted of any offence by any Court.
Under this issue, learned Counsel for the Appellant contends that the trial Court was wrong when it discharged the Respondents from several of the counts of charge against them on the ground that they had been granted unconditional pardon by the Governor of Sokoto State, at a time when the Respondents had not been convicted of any of the offences by any Court of law.
Counsel submits that the power of the Governor of any State in Nigeria to grant pardon to any person concerned with or convicted of any offence under the laws of the State is derived from Section 212(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to with its acronym, CFRN). It is common ground that at the time the Respondents were granted pardon by the Governor, the Respondents had not yet been convicted of any offence(s) under the Laws of Sokoto State, as the trial of the Respondents was still ongoing. Counsel agrees that the Respondents were charged for offences created by the Penal Code Law under the Laws of Sokoto State. It is however contended that one of the fundamental issues that is called into question in this Appeal is the meaning of the phrase “concerned with or convicted of any offence” in Section 212(1)(a); and whether it includes a person who has not yet been convicted of any offence and is still standing trial for allegations of committing offences created by the Laws of a State.
It is submitted that the cardinal principle of the Constitution as expressed in Section 36(5) of the CFRN is that a person accused of a criminal offence is presumed innocent until proved guilty. Thus, the mere allegation of an offence does not amount to a conviction, and the accused person remains an innocent person until he is proved guilty and is convicted by a competent Court of law. Reliance is placed on Amaechi V INEC & Others (2008) LPELR-446, 1 at 260, paras B-F; & Garba V University of Maiduguri (1986) 1 NWLR (Pt. 18)550; 1986 (Vol. 17) NSCC (Pt. 1) 245 at 265.
It is therefore submitted that a person who has not been tried and convicted by a competent Court for an offence, cannot be said to have committed an offence such as to deserve a pardon, because an innocent person cannot be pardoned for an offence. It is contended in effect that, for a person to be concerned with an offence there must have been a conviction. For this reason, Counsel submits that a pardon cannot be granted to a person even in circumstances where his Appeal against conviction by a trial Court has been affirmed by the Court of Appeal, but is still pending at the Supreme Court. Reliance is placed on the Supreme Court decision in Monsura Solola & Anor V The State (2005) 2 NWLR (Pt.937) 460 at 488-489, paras G-B; & Okongwu V State (1986) 5 NWLR (Pt. 44) 741 at 750, paras G-H per Ogundare, JSC.
Counsel further calls for the application of the ejusdem generis canon of interpretation to Section 212(1) (a) of the CFRN. It is therefore submitted that using the ejusdem generis rule of interpretation, the general phrase “any person concerned with in Section 212(1) (a) (supra) means a particular class of people convicted of any offence.
Counsel adumbrates that the ejusdem generis rule is to the effect that wide or general words associated in a with more limited words are taken to be restricted by implication to matters of the same limited character. In other words, where a particular class goes with a general word, the particular class is taken to be comprehensive and the general word is interpreted within the con of the particular class.) Relying on Action Congress V INEC (2007) All FWLR (Pt. 378) 1012 at 1037, Counsel therefore calls for a holistic interpretation of the provisions of the Constitution.Consequently, he contends that the phrase “any person concerned with” in Section 212(1) (a) (supra) should be interpreted consistently with the presumption of innocence in Section 36(5) CFRN (supra) to the extent that Section 36(5) CFRN constricts the phrase to a person who has been convicted for an offence. A narrow interpretation is given to the provisions of the Constitution where it will carry out the object and purpose of the Constitution. Skye Bank Plc V Iwu (2017) LPELR- 42595 is relied on. To do otherwise will lead to an absurdity because the phrase any person concerned with an offence if given a wide interpretation would mean that, apart from the person who is accused of or standing trial for an offence, any person in the criminal justice chain or who has anything to do with regard to an offence, which would include investigators concerned with the investigation of the offence; prosecutors concerned with the prosecution of an offence, and even Judges and Magistrates concerned with the trial of offences.
Additionally, it is submitted that the contention of the Respondents before the trial Court that their trial was as a result of their indictment in the Commission of Inquiry Report and the Government the White Paper thereon, and that the reference made in Exhibit USP to the Commission of Inquiry and the White Paper in the Nature of Pardon, cannot not avail the Respondents. This is because only a Court can convict a person of an offence and not an administrative body; since an indictment is not a conviction. Reliance is placed on Falae V Obasanjo (1999) 4 NWLR (PT.599) 476 at 495 para D-E, per Musdapher JCA (as he then was). It is therefore submitted that the Respondents who had not yet been convicted of any offence at the time the purported pardon was granted, could not be said to have been made novus homo by the instrument of pardon, as they were still presumed innocent until proven guilty. Hence, that the trial Court therefore erred when it discharged the Respondents from the relevant counts of charge on the ground that they had been granted an unconditional pardon by the Governor. The Court is urged to answer this issue in the negative and resolve it in favour of the Appellant.
In response, learned Counsel for the Respondents submits that learned Counsel for the Appellant, in arguing the motion seeking an order to discharge and acquit the Respondents before the lower Court, had submitted that he was not challenging the powers of the Governor under Section 212(1) (a) of the CFRN to grant pardon vide the instrument of pardon (Exhibit USP), per se. It was on this basis that the trial Court held that it would only consider the Appellants contention that the pardon does not extend to the offences for which the Respondents were standing trial before it. Consequently, Counsel submits that this finding constitutes issue estoppel between the parties and the Appellant is estopped from raising the issue of whether or not the Governor has power to grant pardon to the Respondents. Reliance is placed on a host of authorities, including the following: Adeosun v Governor, Ekiti State (2012) All FWLR (Pt. 619) 1044 at 1064, paras A-C; Ngige V Obi (2005) All FWLR (Pt.330) 1041 at 1091-1092, paras C-B; & The Honda Place Ltd V Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273 at 297, paras D-G.
As an alternative submission, it is submitted that from the wordings of Section 212(1) (a) (supra), there are two limbs to the category of persons who can be beneficiaries of a pardon, i.e. “any person concerned with or convicted of any offence. He argues that the use of the word or in the provision is deliberate to convey a disjunctive meaning and this is in harmony with Section 18(3)of the Interpretation Act, CAP. 123 LFN, 2004.Reliance is placed on Abubakar V Yar’adua (2009) All FWLR (Pt. 457) 1, 76-86, paras G-D per Katsina-Alu JSC (as he then was). It is therefore submitted that that the phrase any person concerned with or convicted of any offence are distinct and separate. Counsel submits that the authorities relied upon by the Appellant only relate to the second limb of Section 212(1) (a) (supra), i.e. the phrase convicted of any offence; and that the first limb of the provision i.e. any person concerned with was not directly construed by the Appellant
In addition, the Respondents rely on the definition of pardon given in Blacks Law Dictionary, 8th Edition to submit that a conviction is not a condition precedent or prerequisite to an act to constitute a crime. The Court is therefore urged to hold that a pardon is an act of forgiving a crime and it nullifies punishment or other legal consequences of a crime, such as legal prosecution in the instant Appeal. Reliance is placed on a decision of the Supreme Court of the United States of America which construed the power of pardon under Article 11, Section 2 of the United States Constitution in the case ofExparte A.H. Garland (1865) U.S. Supreme Court Reports, 18 Lawyers Edition, Wallace 3-6 at page 300.
Counsel urged the Court to be persuaded by this decision. In addition, reliance is placed on the case of Nigerian Army V Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429, 467 paras C-A which recognizes that an offence can be condoned, as was done by the Supreme Court when interpreting the provisions of the Armed Forces Act. Finally, the Court is urged to answer this issue in the affirmative and resolve it against the Appellant.
Findings –
The provision of the law which is called for interpretation by this Court is Section 212(1) (a) of the CFRN, 1999 (as amended). It provides;
212. – (1) The Governor may –
(a)Grant any person concerned with or convicted of any offence created by any Law of a State a pardon, either free or subject to lawful conditions.
(Emphasis supplied)
This issue raises the question of the place of pardon in the Nigerian justice system. By the definitions given in Blacks Law Dictionary, 10th Edition, the word Pardon is defined as an official decision not to punish somebody for a crime, or to say that somebody is not guilty for a crime; the action of forgiving somebody for something; to officially allow somebody who has been found guilty of a crime to leave prison and/or to avoid punishment; to forgive someone for something they have said or done. Pardon is also the act of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the chief executive of a government. The President has the sole power to issue pardon for federal offences and State Governors have the power to issue pardons for state crimes. It is also termed executive pardon or free pardon.
The term pardon is first found in early French law and derives from the Latin perdonare (to grant freely), suggesting a gift bestowed by the sovereign. It has thus come to be associated with a somewhat personal concession by a head of state to the perpetrator of an offence in mitigation or remission of the full punishment that he has merited. See Leslie Sebba,Amnesty and Pardon in 1 Encyclopaedia of Crime and Justice 59, 59.
Clemency, reprieve and commutation are also terms related to the word pardon but which do not convey the exact same meaning. Clemency is mercy or leniency, especially the power of a President or Governor to pardon a criminal or commute a criminal sentence.Reprieve is a delay before something bad happens. It is a temporary postponement of the carrying out of a criminal sentence, especially a death sentence. The term reprieve is derived from the French word reprendre meaning to keep back, and signifies the withdrawing of the sentence for an interval of time and operates in the delay of execution. (See Joseph Chitty, A Practical Treatise on the Criminal Law 757). While commutation is defined as the executives substitution of a less severe punishment for a more severe one that has already been judicially imposed on the defendant. Such a commutation may be based on the discovery of pertinent facts that were not known or available when the sentence was decided, or that arose and developed afterward. It must also be based on the executives statutorily or constitutionally granted discretion,regardless of the facts.Under the relevant US Law, Sections 1-2 of the US DOJ Manual, commutation is rarely granted but may be considered for reasons old age, illness, disparity, or undue severity of sentence. (For these definitions, see page 1066 of the Oxford Advanced Learners Dictionary, New 8th Edition; as well as pages 1286, 308, 1495 and 339 of the Blacks Law Dictionary, 10th Edition).
Thus, to contemplate the grant of pardon to an offender who is yet to undergo trial or to fully pass through the justice system to its full extent and be pronounced guilty of the crime for which he is standing trial yet presumed innocent, is to unnecessarily short-circuit the criminal process of trial anticipated by Sections 175 and 212 of the CFRN. It is the exclusive preserve of the Judiciary to try offenders and convict or exonerate them of offences alleged/charged, as the case may be or as the circumstances deserve. It is however the discretionary power of the executive thereafter to pardon, grant amnesty, clemency or reprieve convict, or even to commute his sentence thereafter. Certainly Section 212(1) (a) (supra) does not contemplate that the executive would interfere with this process.
It therefore amounts to an unusual and extra-judicial interference by the executive of the judicial function of courts, whose duty/function is to try offenders for crimes committed against the State, for pardon to be granted to accused persons still standing trial, and in particular, still presumed innocent. To give such a wide interpretation to the provision is to set a dangerous precedent which could lead the society which permits such an action down a very slippery slope, the end of which cannot be imagined and from which it may never recover or even survive. In my considered view, such a wide interpretation of the provision, as suggested by the Respondents, and as applied by the lower Court would be both unnerving,perilous and against the spirit and intendment of the Constitution read holistically.
The words any person concerned with…in Section 212(1) (a) (supra) does not contemplate that an executive should constitute himself into the Attorney General who is empowered under the preceding provision, to wit:Section 211(1) (c) of the CFRN to discontinue any criminal trial instituted by him before any Court without the necessity of giving reasons for such; which is also known as the power of nolle prosequi. Or that the executive should imbue himself with judicial functions prescribed in Section 272 of the CFRN. For ease of reference, Sections 211(1) (c), (2) and (3) of the CFRN, 1999 provide –
211. – (1) The Attorney-General of a State shall have power –
(c)to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2)The powers conferred upon the Attorney- General under Subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Section 272 CFRN (supra) provides –
272. – (1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.(Emphasis supplied) The separation of powers as enshrined in the same Constitution requires that all three arms of Government should exercise their functions and duties in such a way that acts as checks and balances on each other, thus maintaining the balance of power. Where one arm of Government is allowed to usurp the power/function of another arm, there will be resultant instability, confusion and, I daresay, even lead to anarchy.
Nevertheless, by Section 212(1) (a) CFRN, the State executive still possesses the ultimate power at the end of the day when due process has been followed and the trial of a person accused of a criminal offence is ended, to wield his vast and overwhelming power to grant the convict pardon, thereby wiping away the toga of guilt from the convict. However unless and until then, and without the discontinuance of the prosecution by the Attorney General with the entry of a nolle prosequi, the phrase in question must be interpreted using the ejusdem generis rule to give proper meaning to and to reflect the spirit of the provision in question and the entire Constitution,read holistically.The law is trite that in the interpretation of a document or statutory provision, the Court is required to interpret the document as a whole, and not to isolate individual provisions for interpretation. See Ogah V Ikpeazu (2017) 42372(SC) 63, paras B-C, per Kekere-Ekun, JSC; & Amaechi V INEC (2009) 5 NWLR (Pt. 1080) 227.
The main object to all statutory interpretation is to discover the intention of the lawmaker which is deducible from the language used. Once unambiguous, the Judge will give an ordinary literal interpretation to it. The underlying principle of statutory interpretation is that the meaning of the legislation must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained as to what is just and expedient. A Court of law, in the exercise of its interpretative jurisdiction, must stop where the statute stopped. Thus, ordinarily, the literal interpretation should be followed unless that would lead to absurdity and inconsistency with the provisions of the statute as a whole. That is the caveat or stipulation. See Buhari V Yusuf (2003) 14 NWLR (Pt. 841) 446.
However, where the literal interpretation of a statute will result in some ambiguity or injustice, the Court may seek internal aids within the body of the statute itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter. See Awuse V Odili (2004) 8 NWLR (Pt. 876) 481. Thus, when a particular section of a statute is being interpreted, that section should not be read in isolation, but the whole statute must be considered because the section is part of the whole. See Abacha V FRN (2006) 4 NWLR (Pt. 970) at 313-314; Chime V Ude (1996) 3 NWLR (Pt. 461) 379.
Only recently, the Supreme Court in the case of Skye Bank V Iwu (2017) LPELR-42595(SC) at 26-30 per Nweze, JSC,painstakingly and methodically summarized a robust corpus of what may be termed the jurisprudence of constitutional interpretation. Therein, the respected Jurist, in his usual incisive, perceptive and meticulous manner, examined several decisions emanating from Nigeria and outside the shores of Nigeria, particularly in countries of the Commonwealth, and extracted the broad rules guiding the interpretation of the Constitution that have evolved over the span of decades. Having set them out in extensio, he summarized them at pages 30-32 of the E-Report as follows:
Only recently, this Court summed up these prescriptions in Saraki V F.R.N. (2016) 3 NWLR (Pt. 1500) 531, 631-632 in these words (per Nweze, JSC):
… One of the guiding posts in the interpretation of the provisions of the Nigerian Constitution is that the principles upon which it (the Constitution) was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions, Global Excellence Communications Ltd V Duke (2007) 16 NWLR (Pt. 1059) 22; A-G, Bendel V A-G, Federation (1982) 3 NCLR 1.
Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred, Dapianlong V Dariye (2007) 8 NWLR (Pt. 1036) 239.
the principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result,IMB V Tinubu (2001) 15 NWLR (Pt. 740) 690; Tukur V Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, 519; Aqua Ltd V OSSC (1988) 4 NWLR (Pt. 91) 622; Ifezue V Mbadugha and another (1984) 15 NSCC 314; Nafiu Rabiu V The State (1980) 8-9SC 130.
This approach is consistent with the living tree doctrine of constitutional interpretation enunciated in Edward V Canada (1932) AC 124 which postulates that the Constitution must be capable of growth to meet the future, …
I, therefore endorse the position that the construction of any document (and this includes the construction of the precious and organic document known as the 1999 Constitution) is a holistic endeavour…
(Emphasis supplied)
Going by the above strictures or parameters, it would seem to me that adopting an isolated interpretation of the first limb of Section 212(1) (a) of the Constitution as advocated by the Respondents, would only succeed in ascribing a meaning to the provision which the drafts-person did not intend, to wit: granting the Governor of a State the equivalent power granted to the Attorney-General to discontinue criminal proceedings at any stage, id est, to enter a nolle prosequi during trial and before proceedings come to an end, and so effectively bring the proceedings to a screeching halt even before exoneration or conviction, as well as pardoning them. It equally also impinges on the presumption of innocence of the Respondents enshrined in Section 36 of the Constitution, by forgiving them for offences for which they are still presumed innocent (and so not yet deserving of forgiveness) and yet to be found guilty. In my humble opinion, it accords with logic and common-sense that you do not forgive an innocent person, but a guilty person.
At this stage, an examination of decisions of courts over the years from Nigeria, as well as from other jurisdictions outside Nigeria, may not be out of place in order to attempt to situate the place of pardon, its extent and application as prescribed under our Law. It has been the position that Courts have long deplored executive supremacy in the enforcement of judicial sentences by the grant of pardon howsoever, ad hominem; thus, in Anthony Isibor V The State (2002) 2 SC (Pt. II) 110 at 118, it is stipulated that amnesty (which is a form of forgiveness/pardon to a class of persons) should not be granted in a shoddy manner.
In decisions emanating from the United States of America (USA), pardon is described as:
An act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.
See US V Wilson (1833) 8L. Ed 640, US (7Pet.) 150 (1833).
Another definition of a less benevolent outlook is that pardon is:
A determination of the ultimate (political) authority that the public welfare will be better served by inflicting less (punishment) than what the judgment fixed.
See Biddle V Perovich (1926) 71 L. Ed at 1163 247 US 480, 486 (1927).
The judicial power and the executive power of sentences are readily distinguishable. To render judgment is a judicial function. To cut short the sentence by an act of pardon, clemency, reprieve, commutation or the like, is an exercise of the executive which abridges the enforcement of the judgment qua punishment, but does not alter it qua the judgment. See US V Benz (1930) 75 L. Ed 354 at 358.
There is also a judicial prescription in judicial circles in Nigeria that it is inappropriate to grant pardon to a convict (who has been pronounced guilty) whose appeal is still pending. See Obidike V The State (2002) FWLR (Pt. 87) 784 at 817-820(CA). The position also taken by the Supreme Court is that since an appeal is an extension of the trial of the accused person, a person can neither be pardoned nor executed under Sections 175 or 212 of the 1999 Constitution until the appeal is finally disposed of. The rational is that since an appeal is not a new case, it makes the subject matter thereof pending. This was the position of the Court in the case of Monsura Solola & another V The State (5 SC (Pt. 1) 135 at 147; (2005) All FWLR (Pt. 269) 1751 at 1774 (SC). In this case, the 1st and 2nd Appellants, together with two other accused persons, were jointly arraigned as 1st and 2nd accused persons respectively on a two-count information for the offences of conspiracy to murder and murder contrary to Sections 324 and 316 respectively of the Criminal Code, Laws of Ogun State.
The particulars of the offences alleged that the Appellants and other accused persons in conjunction with others at large, on or about the 12th April, 1994 at Igbore in Abeokuta, Ogun State conspired to murder and did murder a hunch-back, one Semiu Gboyega. The charges against the 4th accused person, a child of 12 years of age (who, incidentally, was also the junior brother of the 1st Appellant, cousin of 2nd Appellant and son of 3rd accused), were subsequently withdrawn and he was instead, used as a prosecution witness, PW2. At the conclusion of trial, the Court convicted the Appellants, as well as the 3rd accused, and sentenced them to death.
The Appellants and 3rd accused persons consequent appeals to the Court of Appeal were dismissed. Dissatisfied, the 1st and 2nd Appellants each further appealed to the Supreme Court. The 3rd accused however did not file any appeal. However, before the appeals could be determined, the 3rd accused person was pardoned by the then Head of State in 1999. In determining the question of whether a murder convict who has appealed his conviction or who is presumed to have appealed his conviction can be granted pardon, the Supreme Court, per Edozie, JSC, held inter alia as follows at pages 488-489 of the Law Report:
In the introductory part of this Judgment, I mentioned that of the 3 appellants whose appeals were dismissed by the Court of Appeal, the 1st and 2nd appellants lodged appeal to this court which is the subject matter of this judgment. The 3rd appellant did not file any appeal. Upon enquiry as to his whereabout,Mrs. B.O. Asenuga the learned Solicitor-General, Ministry of Justice, Ogun State who represented the State, in her letter of 16th march, 2005 to this Court stated that the 3rd Appellant, Latifu Solola was released by the then Head of State in 1999. It needs to be stressed for future guidance that a person convicted for murder and sentenced to death by a High Court and whose appeal is dismissed by the Court of Appeal is deemed to have lodged a further appeal to this court and until that appeal is finally determined the Head of State or the Governor of a State cannot pursuant to Sections 175 or 212 of the 1999 Constitution, as the case may be,exercise his power of prerogative of mercy in favour of that person.In the same vein such person cannot be executed before his appeal is disposed of.
(Emphasis supplied)
It is instructive and irrefutable that the lead Judgment of the Court delivered by Edozie, JSC (as above) expressly referred to and interpreted the extent of the application of the powers of the respective executive, idest the President and the Governor of a State, in Sections 175 and 212 of the 1999 Constitution vis-a-vis the exercise of the power of the prerogative of mercy. I bow to the wisdom in this decision, even as I am bound. In line with the exhortation of Edozie, JSC, his lordship Belgore, JSC (as he then was), also called for a re-examination of the rules on the grant of a prerogative of mercy in this regard to bring it in line with the interpretation of these provisions, and therefore put paid to any confusion, uncertainty or ambiguity over the extent of the power of the President and/or Governor to exercise his power to grant pardon under the applicable constitutional provisions.
Also in the case of Falae V Obasanjo (1999) 4 NWLR (Pt. 599) 476, this Court interpreted Section 161(1) of the 1979 Constitution (which is in pari materia with Section 175(1) (a) of the CFRN, 1999 on the power of the President to grant pardon, and similar to Section 212(1) (a) of the CFRN, 1999 now under consideration with regard to the equivalent power of a Governor to exercise the power to grant pardon. For ease of reference Section 161(1) of the 1979 Constitution provided as follows: 161(1) The President may:
(a)grant any person concerned with or convicted of any offence created by an Act of the National Assembly, a pardon, either free or subject to lawful conditions.
On the meaning of pardon, the Court per Musdapher, JCA (as he then was) held at page 495 of the Report inter alia as follows:
A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence… The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned.
The point here is that the rights and privileges of a person still standing trial are not forfeited unless and until he is convicted for the offence charged; and by the same token, the rights and privileges cannot be said to be restored unless they have been forfeited in the first place due to a conviction. I do however acknowledge that the main issue in the case now referred to, to wit: Falae V Obasanjo (supra), was in respect of whether or not a pardon removes civil disabilities such as would constitute a bar to the Respondent in standing election for the office of a President. It is however still helpful in determining the scope of the power contained in Sections 175 and 212(1) (a) of the CFRN.
Again, in the earlier case of Dr. Obi Okongwu V The State (1986) 5 NWLR (Pt. 42) 721, the Appellant therein, who was the Solicitor-General of Anambra State, acting as the Defendants Counsel in a civil suit No. AB/23/80: Ilodibia V Okafor & another, was summarily convicted for contempt of Court and sentenced to 21 days imprisonment on 11th February, 1983. On the same day, the Governor of Anambra State, Chief Jim I. Nwobodo, in the exercise of the powers conferred on him by Section 192(1) (d) of the CFRN 1979 (which is in pari materia with Section 212 of the CFRN 1999), issued an instrument of pardon granting a free pardon to the Appellant. The instrument of pardon read inter alia as follows:
… NOW THEREFORE, in exercise of the powers conferred on me by Section 192(1) (a) of the Constitution of the Federal Republic of Nigeria, 1979, and all other powers enabling me in that behalf, I CHIEF JIM IFEANYICHUKWU NWOBODO, Governor, Anambra State of Nigeria,after consultation with the Advisory Council on Prerogative of Mercy established by Section 3 of the Law,1980, do hereby grant to the said Dr. Obi Okongwa a free pardon…
As a result of this instrument, the Appellant was released from custody on the same day. The Appellant however subsequently filed an appeal to the Court of Appeal against his conviction and sentence. During the proceedings, the Court suo motu raised an issue touching on the competence of the appeal, having regard to the fact that the Appellant had already been granted a free pardon, and took the addresses of Counsel. Consequently, the Court held inter alia thus:
(a)A pardon does not raise the inference that the person pardoned had not in fact committed the crime for which the pardon was granted. A pardon stops the punishment and the consequences attaching thereto but does not wipe out the fact of conviction. (Hay v Tower Division of London (1890) 24 QBD 561 not followed).
(b)Since Section 192(1) (a) of the 1979 Constitution is silent to the effect of a free pardon granted under that Section, one has to look into the common law to determine what effect has the free pardon granted on an appellants conviction and sentence.
(c) A pardon is usually granted where a convict
i.has exhausted all his legal rights of appeal; or
ii. has no intention of exercising such right; or
iii. where he is wrongfully convicted and is afterwards pardoned upon the ground of his innocence.
(Emphasis supplied)
Still in considering the issue of whether the Appellant, who had been granted pardon by the Appellant after his conviction for contempt, could still appeal against his conviction, Akpata, JCA (as he then was) held as follows:
That the appellant in this case was convicted is true, regardless of the pardon. It is an antithesis of truth to indulge in the fiction that pardon wipes out the offence or conviction. What pardon does is, in my view, to wipe away the stigma of the conviction and not the conviction itself. It contains no notion that the person to whom the pardon is extended never had in fact committed the offence.It is a matter of forgiveness.If, indeed, the fiction of pardon blotting out the offence or conviction is valid, this fiction should not prevent the Appellant from having his conviction blotted out in reality by a competent Court.
Thus, if pardon wipes out the stigma of conviction and not the conviction itself, then it is inconceivable that a person who is presumed innocent until he is found guilty upon conviction, can be the recipient of a pardon. Again, it must be pointed out that this case was concerned with whether or not a person granted a pardon after conviction could still pursue an appeal to remove the fact of conviction, even after the pardon. Nonetheless, it is helpful and a guide in giving direction to the meaning and scope of pardon in the constitutional provision now under consideration.
In arriving at this decision, the Court was persuaded by number of English decisions, amongst which was Regina V Foster (1984) 3 WLR 401, per Watkins, LJ; & Re-Royal Commission on Thomas Case (1980) 1 NZLR (New Zealand Law Report) 602. These authorities pronounced upon the general effect of a pardon, from which it can also be surmised that a pardon is granted after, and not before conviction, as is the stipulation in Section 212(1) (a) of the 1999 Constitution.
Furthermore, in the Nigerian case of Aliu Bello V AG of Oyo State (1986) 5 NWLR (Pt. 8) 828 at 860, the execution of the Appellant during the pendency of his appeal was held to be a breach of his fundamental human rights. The Court held that it was a flagrant breach of the constitutional provision on the right to life when the Government hastily and illegally snuffed out the life of an Appellant whose appeal was pending. By the same token, as was held inSolola V State (supra), it was held firmly that a pardon cannot be granted by the executive until the appeal process has been exhausted. This position is in contemplation of the notion that there must be guilt for the exercise of pardon to be activated,taking into consideration the presumption of innocence in Section 36 of the CFRN which attaches to every citizen of Nigeria.
By these findings, it is rather apparent, in my humble view, that for there to be a pardon, there must have been a conviction. A pardon is premature and uncalled for when a person, who is presumed innocent until found guilty by a competent Court of law, is yet to be convicted. To proceed to grant a pardon to such a person to whom the presumption of innocence attaches, is to limit or restrict or constrict the constitutional presumption of his innocence therefore impinging on his right, and unwittingly concluding extra judicially, that the accused person still standing trial, is guilty of the offence charged and therefore deserving of a pardon, id est forgiveness.
Thus, the common thread running through all the decisions considered is that, whereas it is unarguable that Section 212(1) (a) (supra) gives the executive of a State the power to bestow pardon on whom he will, that power is only exercisable after the person, the beneficiary of the pardon, has been convicted and/or has exhausted his right to appeal against the conviction (where such is applicable) and not before. See also COP V Ali (2003) FWLR (Pt. 157) 1164 at 1180(CA).
I am not unmindful of the decision in the case of Nigerian Army V Brig.Gen. Maude Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429 relied upon by the Respondents. Clearly the facts therein are not in tandem with the facts of the case giving rise to this Appeal, just as the issue considered therein by the apex Court. Briefly, in September, 2005, a General Court Martial was set up to try the Respondent for certain offences. The Respondent pleaded not guilty to the offences charged. The prosecution then adduced evidence through eight witnesses, and at the close of its case, the Respondent raised an objection to the jurisdiction of the Court martial to try him on several grounds. He made a plea in bar of the trial on the ground that, by virtue of a document in which the charges against the Respondent were withdrawn and substituted with a final warning letter, Exhibit 45, the Respondent could not have been subject to trial anymore as that letter amounted to a condonation by the Respondents Commanding Officer provided for by Section 171 of the Armed Forces Act. This plea was dismissed by the trial Court and the Respondent was called upon to enter his defence. At the close of trial, the Respondent was convicted and sentenced to various terms of imprisonment, a reduction in rank for each count of charge, and subsequently compulsorily retired by the Army Council. Dissatisfied, the Respondent appealed to the Court of Appeal which upheld his Appeal. Aggrieved, the Appellant further appealed to the Supreme Court.
In consideration of the Respondents plea at the trial Court that Exhibit 45 constituted a bar to further trial on the same charges before the trial Court, the Supreme Court considered the provision of Section 171 of the Army Act, Cap. A20, Laws of the Federation of Nigeria, 1990 and interpreted same. Section 171((1) (c) thereof in particular, provides thus:
171. Offences already disposed of not to be retried (1)Where a person subject to service law under this Act –
(c) Has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by a Court martial or to have the case dealt with summarily under the Act.
In the lead Judgment of the Supreme Court, per Muhammad, JSC held inter alia as follows at page 463 of the Report:
I find myself inclined to re-state the position of the law that any serving person or officer of the Nigerian Armed Forces who is subject to service law especially the prevailing law as is now contained in the Armed Forces Act, Cap. A20, LFN, 2004; who has been alleged to have committed some crimes and has been condoned by his Commanding Officer under the Act, cannot be subjected to double jeopardy by standing trial before a Court or Tribunal of whatever nature and howsoever. To allow for that would tantamount to making mockery of that Act especially Section 171 thereof.
Clearly therefore, by the interpretation of Section 212(1) (a)of the CFRN given Solola V State (supra) and in the instant Judgment, the pardon granted by the Governor of Sokoto State cannot be equated to the condonation of the Respondent in the case cited, which was done in compliance with the Army Act (supra)and which does not have an equivalent in the 1999 Constitution. The pronouncement of the Supreme Court was specifically tied to the interpretation of Section 171 of the Army Act (supra). Section 212(1) (a) CFRN (supra) under consideration is not similar in any way to that provision.
In addition to this, the pardon granted by the Governor in the instant case, as reflected in the instrument of pardon, was only in respect of the offences for which the Respondents were indicted by the Commission of Inquiry Report and the Government White Paper, and such other related offences (as those in the indictment), under the Laws of Sokoto State. Thus, even if the pardon by the Governor was to be considered as a condonation of the offences, (which it is not), it does not affect the other criminal offences for which the Respondents are presently being tried for before the lower Court, which offences were not tied or related to the offences referred to in the instrument of pardon. Thus, there is no comparison and the decision in NA V Aminun-Kano (supra), while good law is not applicable to the facts of this case.
Again, learned Counsel for the Respondents has referred to a recent decision of this Court in a sister-Appeal,FRN V Alkali & Isa (Unreported) Appeal No. CA/S/179c/2017, Judgment delivered on 11th July, 2018, and asked the Court to follow its decision therein. I have examined this Judgment, which is a decision arising from the same criminal case before the trial High Court, as the Respondents therein were co-accused persons with the Respondents herein, who also benefited from the instrument of pardon, Exhibit USP, granted by the Governor of Sokoto State, and named as the 5th and 6th beneficiaries therein.
With the greatest respect however, I find myself unable to agree with the majority Judgment of the Court with regard to the construction placed on Section 212(1) (a) CFRN (supra) in the light of the Courts understanding of the word or in the provision, and its disinclination to apply the ejusdem generis principle of construction to the provision of the Constitution under consideration as well as to the instrument of pardon. It is my respectful view that only a strict and narrow construction, and not such a wide and liberal interpretation of the constitutional provision and the instrument of pardon, Exhibit USP, will align with the spirit and intendment of the Constitution and with justice. Instead, I agree with the position taken in the dissenting Judgment of my learned brother Shuaibu, JCA, wherein he held as follows at pages 52-53 of the Judgment.
In other words, prerogative of mercy as a legal concept cannot in my respectful view be set in motion unless and until there is a sentence of a court on a convicted person(s) which the mercy will act as a vehicle of mitigating or waiving the punishment.Where as in the instant case,the respondents trial was on-going, there cannot be a pardon granted to the respondents by the Governor of Sokoto State pursuant to Section 212 of the 1999 Constitution.As a corollary to the above,the instrument of pardon in the instant case, Exhibit A must be precise and tide (sic) to a particular offence or offences and can never be at large.I dare say that the said instrument has no nexus with the offences charged even though same was purportedly made while the trial on the one hundred and forty four counts charge was pending against the respondents. The instrument of pardon is to say the least vague, imprecise and clearly ambiguous.
In respect of additional submissions by the Respondents on this issue, while it may indeed be the case that in some foreign jurisdictions, the jury is still out on the question of whether or not a pardon can be granted without exhausting the judicial process of conviction and finding of fault or guilt, (see Murphy V Ford 390 F. Supp. 372 (1975); K.M. Nanavati V State of Bombay (161) AIRI 134), there are however also instances where a grantee of a pardon might not accept that he was ever guilty of the offence charged in the first place, to warrant a pardon. This would therefore, no doubt create a dilemma or at the least, a sticky situation.
Thus, in the English case of Biddle V Perovich (1929) 24 US.480 (1927), it was stipulated that:
A pardon in our days is not a private act of grace from an individual happening to possess power. It is part of the Constitutional scheme. Although the formal acceptance doctrine which was raised by C.J. Marshall in US V Wilson has been dented in later cases where the Courts would seem to suggest that the exercise is complete regardless of the acceptance of the grantee, I doubt if we can use this as a basis for the non-recognition of a basic right of an individual to refuse the selective application of the law. (Emphasis supplied)
With particular reference to the United States case of In Ex-parte A.H. Garland (1865) U.S. Supreme Court Reports, 18 Lawyers Edition, Wallace 3-6 at page 360, upon which the Respondents placed heavy reliance and anchored their contention that Section 212(1) (a) CFRN (supra) empowers a Governor to pardon an accused person standing trial even before conviction, an in-depth examination of the facts leading to that decision, as well as the decision itself discloses that the case was evidently cited out of con. I will explain.
In that case which emanates from the United States of America (a country which operates a presidential system of government like that in operation in Nigeria), the Act of Congress of January 24, 1865 prescribed a test oath that the deponent has never voluntarily borne arms against the United States, etc, as a condition for the qualification of any person aspiring to be an Attorney and Counsellor of the Supreme Court. The Act stipulated that any person who shall falsely take the said oath shall be guilty of perjury and on conviction, in addition to the penalties prescribed for the offence, shall be deprived of his office and rendered incapable forever after, of holding any office or position in the United States.
In July, 1865, the petitioner, A.H. Garland, who had held arms against the State as a soldier in the Confederate Army during that countrys civil war, was granted a full pardon and amnesty from the consequences of having borne arms against the State by the President of the U.S., in these words:
Whereas A.H. Garland by taking part in the last rebellion against the Government of the United States, has made himself liable to heavy pains and penalties… I Andrew Johnson, President of the United States, in consideration of the premises… do hereby grant to A.H. Garland a full pardon and amnesty and for all offences by him committed arising from his participation direct or implied, in the said rebellion…
This instrument of pardon therefore cleared the way for Mr. Garland to practice as an Attorney, without taking the oath. The petitioner therefore asked for permission to continue to practice as an Attorney and Counsellor of the Supreme Court without taking the mandatory oath as required by the 1865 Act of Congress to so qualify him. As aforesaid, he had been unable to take the oath by reason of the offices he had held under the Confederate Government.
He rested his application principally on the ground that he had been released from compliance with the provisions of the Act by the pardon of the President. In delivering the opinion of the Court, Mr. Justice Field stated as follows at page 371 of the Report:
… the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender;and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
It is obvious that the finding of the Court above was in respect of a pardon that was more of an act of amnesty to Mr. Garland. He was never accused or charged or placed on trial for any offence before any Court of law. The pardon was granted simply to enable him qualify to be an Attorney and Counsellor of the Supreme Court. Thus, in view of the facts and circumstances leading to this decision, I am of the considered view that the Garland case cannot be an authority for the proposition that, in our jurisdiction under the specific provision of Section 212(1) (a) of the CFRN, a State executive can grant pardon to a person charged and standing trial for an offence, even before conviction. Mr. Garland was merely granted an amnesty after the war from the penalties he would have suffered for bearing arms against the United States when he was in the Confederate Army.This courtesy/consideration was extended to him by President Jonson to enable him take the requisite oath that would entitle him to practice as an Attorney and Counsellor of the Supreme Court, without the risk of him being found guilty of committing perjury. To therefore use this decision as an authority for the contention that Section 212(1) (a) CFRN vests in the Governor/executive of a State the power to pardon an accused person undergoing trial and before conviction is to force the facts of the Garland case onto the instant case. This will not do.
Hence, my assessment of the sum total of the findings in the cases examined is that, while on one side of the divide, to wit: the English decisions in cases such as Foster and Thomas (supra) it was the consensus that by the laws applicable in the various jurisdictions, the executive had the power to grant pardon to a convict after conviction by a Court of law, however that such a free pardon does not wipe out the conviction; on the other side of the divide, to wit in respect of the American case of A.H. Garland (supra), it was its position that a free pardon freed the recipient from the penalties reserved for those who bore arms against the US, and expunged or blotted from the record his guilt.
With regard to the submissions of learned Counsel for the Respondents in respect of the interpretation of the word or in the phrase any person concerned with or convicted with an offence… in Section 212(1) (a) CFRN, I am of the view that it must necessarily be interpreted conjunctively in order to give proper effect to the spirit behind the provision, the intention of the draftsman and a holistic interpretation of the Constitution such that it would not lead to an absurdity. I am mindful of Section 18(3) of the Interpretation Act relied upon by the Respondents for the interpretation of the word or. The effect of Section 18(3) (supra) is that there is a presumption that the use of the word or means that the words following are not to be construed as similar to the preceding words, so that the onus is on the person seeking to say that they are similar to show that the contrary intention applies. The important thing however is to discover the intention of the Legislature reading the section as a whole and the provisions of the Constitution holistically.
In the instant case, the Appellant has discharged this onus of showing that Section 212(1) (a) CFRN (supra) discloses an intention of applying the ejusdem generis principle, as only by doing so can effect be given to that provision as a whole.Consequently, the words grant any person concerned with or convicted of any offence created by any Law of a State must be construed to mean persons convicted of offences in any Law of Sokoto State similar to the indictments of the Respondents in the Commission of Inquiry Report and Government White Paper. Thus, the word or therein should be read as and to give meaning and effect to Section 212(1) (a) CFRN and the spirit and intendment of the Constitution as a whole. Also, the Supreme Court in the case ofSkye Bank Plc V Iwu (supra) per Nweze, JSC, strongly advocates for a holistic interpretation of the provisions of the Constitution in order to avoid an absurdity. In so doing, the only interpretation permissible is to give the word or in the provision a conjunctive meaning.
It is also trite that in the interpretation of the Constitution and/or statutes and in construing the contents of documents, the word or can sometimes be construed to mean and so as to give meaning and effect to the statute.For instance, in the case
Ndoma-Egba V Chukwuogor (2004) 6 NWLR (Pt. 869) 382, 409, Uwaifo, JSC opined as follows: In ordinary usage, the word or is disjunctive and is conjunctive. But it is conceded that there are situations which would make it necessary to read and in place of or and vice versa. This may occur in order to carry out the intention of the Legislature… Such interpretation may be quite useful in order to avoid absurd or impracticable results.
Although his lordship was not interpreting the Constitution in that case, the dictum is useful in interpreting the word or in Section 212(1) (a) of the Constitution so as to avoid the absurdity of a Governor granting pardon to a person who is presumed to be innocent by the Constitution of Nigeria.
Finally, on this issue, Ogundare, JCA (as he then was) in the case of Dr. Obi Okongwu V The State (supra), exhorted as follows:
Similarly, too, the Constitution as it applied at all times material to this appeal, had enshrined in it the doctrine of separation of powers.By Sections 4 and 5 (now suspended) the legislative and executive powers of a State were vested in the House of Assembly and Governor of the State respectively. By Section 6, the judicial powers were (and still are) vested in the Courts established for the State.Any exercise of executive power by the Governor which interfered with the judicial powers would be unconstitutional. See Paul Inongo V Aper Aku & Ors. (1984) 11 SC 129; J.J. Kadiya V Solomon D. Lar & Ors. (1984) 11 SC 209.
Thus, a Governor could not by an executive act reverse the Court decision. It follows that Governor Nwobodo could not in the exercise of his constitutional power under Section 192(1) (a) of the Constitution reverse the decision of the High Court convicting the appellant of contempt of Court; that power lies only with the Court. Governor Nwobodo could only, by a grant of pardon to the appellant,relieve the latter of all pains, penalties and punishments whatsoever that from the said conviction may ensue.
As an addendum, his Lordship went further to give a baleful eye to the action of the executive in the manner in which pardon was granted to the Appellant, thus:
One need not say much on the rather indecent haste and pointless confrontation with the Court attendant on the grant by Governor Nwobodo of a free pardon to the appellant on the very day of his conviction, more so, that the offence for which he was convicted had to do with maintaining the dignity of the Court. It is only an example of the naked abuse of power that characterized the period of the Second Republic in this country… For these reasons given above, I have come to the conclusion that the appellant is not precluded from lodging this appeal, the free pardon granted to him notwithstanding.
Therefore, in view of the timely admonition of Ogundare, JCA, (as he then was) made as far back as 1986, care must be taken not to recede into the dark days of impunity,when the will of the executive, and not the rule of law was the order of the day. I therefore resolve issue one in favour of the Appellant.
Issue two – Whether the trial Court was right when it discharged the Respondents from the charges against them in the Case No. SS/33C/2009 on the ground that they have been granted unconditional pardon by the Governor of Sokoto State, despite the fact that the instrument of pardon, Exhibit USP, clearly showed that the Governor of Sokoto State, Rt. Honourable Aminu Waziri Tambuwal, did not comply with the condition precedent of consulting with the Advisory Council of Sokoto State on Prerogative of Mercy under the Advisory Council on the Prerogative of Mercy (Establishment), Cap. 108 Laws of Sokoto State of Nigeria, before exercising his power to grant pardon as required under Section 212(2) of the Constitution of the Federal Republic of Nigeria, 1999.
Under this issue, the Appellant argues that the trial Court was wrong when it discharged the Respondents from the counts of charge against them on the ground that they had been granted an unconditional pardon by the Governor despite the fact that, from the instrument of pardon, the Governor did not comply with the condition precedent of consulting with the Advisory Council of Sokoto State on the Prerogative of Mercy under the Advisory Council on the Prerogative of Mercy (Establishment) Law, Cap. 108 Laws of Sokoto State of Nigeria, before exercising his power to grant pardon, as required under Section 212(2) of the CFRN.
Counsel submits that the exercise of the power of pardon by the Governor to any person concerned with or convicted for an offence committed against the Laws of the State is not based on his whims and caprices. Instead, the provision sets down a condition precedent before such a pardon can be considered valid. He draws attention to the word “shall” in the provision, and for the impact of that word, reliance is placed on National Assembly V CCI Co. Ltd (2008) 5 NWLR (Pt. 1081) 519 at 40, paras D-G, per Omoleye, JCA.
Reference is also made to Section 2 of the Advisory Council on the Prerogative of Mercy Law (supra) which provides that the Governor must consult with the Advisory Council before exercising the power vested in him in Section 212(2) of the CFRN. It is contended that by Exhibit USP, there is no indication that the Governor consulted with the Advisory Council before he granted pardon to the Respondents. Reliance is placed on House of Assembly, Bendel State V AG Bendel State (1984) 5 NCLR Vol. 5, pg.166, para 6, per Nasir PCA; & Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 427, the Supreme Court per Tobi and Ogbuagu JJSC. There being no compliance with the condition precedent, he argues that Exhibit USP is a nullity, and therefore that the trial Court was wrong to have given it effect in discharging the Respondents. The Court is therefore urged to answer issue two in the negative and resolve it in favour of the Appellant.
In response, the Respondents submit, as was earlier submitted under issue one above, that the question of the validity of the instrument of pardon (Exhibit USP), constituted issue estoppel between the parties and the Appellant is not allowed to derogate therefrom on Appeal. However, assuming that the Appellant can validly impugn the instrument of pardon at this stage, it is submitted that there is nothing in Section 212(1) (a) (supra) which requires the Governor to state on the instrument of pardon that he consulted with the Advisory Council on the Prerogative of Mercy before granting the pardon. It is argued that Exhibit USP constitutes an official act for which there is a presumption of regularity under Section 168(1) of the Evidence Act, 2011. Reliance is placed on Nadabo V Dubai (2011) 7 NWLR (Pt. 1245) 155 at 178, paras D-G; CBN V Beckitt Constr. Ltd (2011) 5 NWLR (Pt. 1240) 203 at 223, paras F-F; & Ogu V Ekweremadu (2006) 1 NWLR (Pt. 961) 255 at 282, paras F-G. Therefore, that the Appellant has the duty of rebutting the presumption of regularity in favour of Exhibit USP by adducing credible evidence. This, it is contended, has not been done. The Court is therefore urged to answer this issue in the negative and resolve it against the Appellant.
Findings –
Indeed, as rightly submitted by the Respondents, a presumption of regularity attaches to official acts by virtue of Section 168 of the Evidence Act, 2011, which presumption is rebuttable. However, no attempt was made by the Appellant, either at the lower Court or before this Court, to adduce evidence to establish the assertion that the Governor did not consult with the Advisory Council for the Prerogative of mercy. Issue two is resolved in favour of the Respondents.
However, for the avoidance of doubt, having already held earlier in my findings under issue one of this Judgment that by Section 212(1) (a) of the CFRN (supra), the Governor was not vested with power to exercise his power of prerogative of mercy to grant pardon to the Respondents who were still standing trial and had not been convicted of any offence, this issue has been rendered merely academic, and this Court is without jurisdiction to decide on academic issues.
Issue three – Assuming without conceding that the Governor of Sokoto State could grant pardon to the Respondents when they had not been convicted of any offence by any Court, whether the trial Court was right when it held that the instrument of pardon, Exhibit USP, extended or included the offences for which the Respondents were standing trial in Charge No. SS/33C/2009, when the instrument did not specify or expressly state that the pardon was for the said offences.
Under issue three, it is argued on behalf of the Appellant that assuming without conceding that the Governor of Sokoto State could grant pardon to the Respondents when they had not yet been convicted of any offence by any Court, the trial Court was wrong when it held that the instrument of pardon, Exhibit USP, extended to the offences for which the Respondents were standing trial in Charge No. SS/33C/2009, when the instrument did not specify or expressly state that the pardon was for the said offences.
It is submitted that the Respondents failed to prove that they were standing trial on account of the Report of the Commission of Inquiry and the recommendations in the Government White Paper. The assertions in their affidavit and Counsels written address that the offences for which they were charged stemmed from their indictment by the Commission of Inquiry and Government White Paper, and also that it was the Attorney-General of Sokoto State who initiated their prosecution, were not proved.
The Respondents did not proffer any credible evidence to show the link between their trials in Case No. SS/33C/2009, and the Report of the Commission of Inquiry and/or the White Paper. Instead, the Appellant adduced evidence which shows that none of the counts of charge made any reference to the Report of the Commission of Inquiry or the White Paper, and the prosecution of the Respondents was initiated by the EFCC in the name of the Federal Republic of Nigeria. The Appellants counter affidavit deposed to by an operative of the EFCC who investigated the case, asserted that the Respondents were standing trial as a result of the investigation conducted by operatives of the EFCC sequel to a written petition received from the then Attorney General of Sokoto State, as well as on the basis of an intelligence report received by the EFCC. The written complaint of the Attorney General was filed at the lower Court as part of the Appellants additional proofs of evidence. It is therefore submitted that the Respondents failed to prove that they were standing trial in the Charge as a result of their indictment by the Commission of Inquiry and the Government White Paper.
It is further submitted that despite the use of the words “and any criminal offence they might have been accused against the Laws of Sokoto State”, Exhibit USP constricted the pardon to any offences or criminal proceedings arising from the Report of the Commission of Inquiry and White Paper, and no more. Since the case was already pending in Court the time the Governor issued the instrument of pardon on 29th September, 2016, the Governor was aware or deemed to have been aware of the existence of the case. Therefore, having not expressly extended the pardon specifically to the suit, his intention was that the pardon should not extend to the offences in the charge. Thus, the instrument of pardon is not wide enough to avail the Respondents a pardon against all offences, whether or not the offences were connected to the Report of the Commission of Inquiry and the White Paper. It is submitted that to give it such an interpretation would lead to gross absurdity because it would include any conceivable offence the Respondents might have been accused of, whether known or unknown to the Governor, including possible for offences that may have been undergoing investigation. This could not have been the intention of the Governor.
Consequently, it is submitted that the nature of the pardon as couched in Exhibit USP is ambiguous, and the only option for discerning the intention of the Governor is to call in aid the jusdemgeneris principle of interpretation. By this rule of interpretation, the words “and any criminal offence they might have been accused of against the laws of Sokoto State” means any criminal offence or charge emanating from the indictment of the Respondents by the Report of Commission of Inquiry and the Government White Paper dated 28th October 2009, and therefore excludes any other criminal offence that did not emanate therefrom or is connected to it. The Court is therefore urged to resolve this issue in favour of the Appellant, to allow the Appeal and set aside the order discharging the Respondents.
In response, the Respondents submit that all the offences for which the Respondents were standing trial in Charge No. SS/33C/2009 were embedded in the Penal Code Law of Sokoto State and are offences against the Laws of Sokoto State. Therefore, that Exhibit USP is couched in very wide terms to cover the offences for which the Respondents were standing trial, which offences are against the Laws of Sokoto State. The intention of the Governor as expressed in Exhibit USP is that, apart from the Report of the Commission of Inquiry and the White Paper, the Respondents should benefit from reprieve for other offences committed against the Laws of Sokoto State. The Court is therefore urged to construe the word and therein disjunctively, thereby giving full effect to the intention of the Governor as expressed in Exhibit USP. Reliance is placed on Ogunyade V Oshunkeye (2007) 15 NWLR (PT. 1057) 218 at 245, paras E-H.
Finally, the Court is urged to answer issue three in the affirmative, resolve it against the Appellant and dismiss the Appeal for lacking in merit.
Findings –
Once again, I find this issue academic in view of my finding under issue one of this Judgment on the construction of Section 212(1) (a) CFRN (supra) wherein I held that the Governor of Sokoto State does not possess any power to exercise his power of prerogative of mercy to grant pardon to the Respondents who have not been convicted of the offences charged at the lower Court. Thus, the interpretation of the extent of the application of the instrument of pardon has become unnecessary and superfluous.
Be that as it may, as a penultimate Court, I must say I agree with the submissions of Counsel for the Appellant that to give the words in the instrument of pardon such a wide interpretation, would lead to nothing but absurdity. It certainly cannot be interpreted to mean that the Governors pardon extends to any and every offence whatsoever under the sun charged and/or committed by the Respondent against the expansive Laws of Sokoto State. The absurdity in this is apparent in that it could then be taken to mean that even where the Respondents are currently being investigated for heinous offences such as homicide, rape, grievous hurt and the like, they are rendered forever immune from prosecution by virtue of this instrument of pardon.
Instead, I am in agreement with learned Counsel for the Appellant that the instrument must be interpreted using the ejusdem generis rule in order to bring it in line with the offences referred to in the instrument of pardon for which the Respondents had been indicted by the Commission of Inquiry Report and the Government White Paper issued thereon. It surely cannot be at large to clothe the Respondents with immunity against prosecution for any crime whatsoever under the Penal Laws of Sokoto State. To give it such a construction would not only be incongruous, but also irrational and illogical.
By the ejusdem generis rule of construction, where the general words follow particular and specified words, the general words must be confined to things of the same kind. In other words, where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class. The rule is based on the principle noscitur a sociis. In the English case of Thomas Mersey Insurance Co. V Hamilton, Fraser & Co. (1887) 12 App. Cas. 484 at 490, Lord Halsbury L.C. stated as follows in respect to this rule:
There are two rules of construction now firmly established as part of our law. One is that words, however general, may be limited in respect to the subject-matter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them.
See also Lyndon V Stanbridge (1857) 2 H & N. 45 at 51.
The rule helps to confine construction of general words within the genus of special words which follow in a document or a statutory provision. It is said to be a question of the assumed intention of the maker/draftsman. See Abacha V FRN (supra); FRN V Ifegwu (2003) 15 NWLR (Pt. 842) 113. Thus, the reference to any other offences against any Laws of Sokoto State” must necessarily be circumscribed and restricted to the specific offences for which the Respondents were indicted by the Ahmad’s Commission of Inquiry and the Government White Paper thereon. Therefore, without further ado, I resolve issue three also in favour of the Appellant.
In the result, having resolved issues one and three in favour of the Appellant, I find merit in the Appeal. It succeeds and is allowed.
Consequently, I set aside the Ruling and Order of the High Court of Justice, Sokoto State in Charge No. SS/33C/ 2009 delivered on 29th June, 2017, by Abbas, J., wherein the Respondents were discharged and acquitted of the offences charged.
In its place, I order that the Respondents are to go back to take their trial for the stated offences charged under the relevant provisions of the Penal Code Law, before another Judge of the Sokoto State High Court, other than Bello Abbas, J.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read in draft form, the Judgment just delivered by my learned brother Jummai Hannatu Sankey JCA. I agree with her reasoning and final conclusion. I have nothing more useful to add.
I agree and adopt the orders in the lead Judgment as mine.
ADAMU JAURO, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother, Jummai Hannatu Sankey, JCA. I am at one with the reasoning and conclusion contained therein to the effect that the appeal has merit and should be allowed.
The crux of this appeal is that the Respondents were granted unconditional pardon by the Governor of Sokoto State, while their trial was ongoing. In our adversarial system of jurisprudence, any person standing trial in a criminal case is presumed to be innocent until the contrary is proved and the standard of proof is beyond reasonable doubt. This is what is referred to as the doctrine of presumption of innocence which has secured a constitutional support in Section 36 (5) of the 1999 Constitution (as amended). Hence a person whose trial is ongoing, a fortiori constitutionally presumed innocent cannot be granted pardon because an innocent person cannot be pardoned for any offence. There must be conviction before pardon can be granted, indeed pardon cannot even be granted to a person whose appeal against conviction is pending at the Supreme Court.
SeeSolola v State (2005) 2 NWLR (Pt. 93) 460 at 488 – 489, Okongwu v State (1986) 5 NWLR (Pt. 44) 741 at 750. The safest and most hygienic option while trial is ongoing is to explore the use of Nolle Prosequi under Section 211 of the Constitution. The trial Court erred in upholding the order of pardon and discharging the Respondents.
I adopt the judgment as mine in allowing the appeal in terms of the orders made therein and abide by all other consequential orders.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. His Lordship has ably considered and resolved the Issues In contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The main Issue in this appeal turns on the interpretation of Section 212(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The section reads that the Governor of a State “may grant any person concerned with or convicted of any offence created by any Law of a State a pardon, either free or subject to the lawful conditions.” The Governor of Sokoto State, apparently acting under the provision of the section, by an Instrument issued on the 29th of September, 2016, referred to the indictment of the Respondents by the Report of Alhaji Muhammad Aminu Ahmad’s Commission of Inquiry and the Government White Paper dated 28th of October, 2009 and, granted an unconditional State Pardon to the Respondents for the offences they were concerned with arising from the Report and White Paper and any criminal offence they might have been accused of against the Laws of Sokoto State.
At the time of the grant of the unconditional pardon, the Respondents were facing criminal prosecution before the High Court of Sokoto State in Case No. SS/33C/2009 for several offences committed under the Penal Code Law of Sokoto State. The matter was part-heard, the Appellant having concluded the evidence of six of its witnesses and the seventh prosecution witness was in the witness box. The Respondents filed an application before the lower Court dated the 24th of April, 2017 praying that they should be discharged and acquitted of the charges against them on the ground that they had been granted unconditional pardon for all the offences contained on the charge. The lower Court took arguments on the application and granted the request of the Respondents in a Ruling delivered on the 29th of June, 2017.
The contention in this appeal is whether the power of pardon granted to the Governor of a State under the provisions of the Section 212(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) includes the power to pardon a person for offences that he has not been charged with and/or convicted and sentenced for, or is only limited to situations where a person has been tried, convicted and sentenced.
Before delving into this contention, it is pertinent to point out that a similar case had come before this Court in Appeal No CA/S/179C/2017 Federal Republic of Nigeria Vs Alhaji Tukur Alkali & Anr. The appeal was heard by a panel of three Justices and in a considered judgment delivered on the 11th of July, 2018, the Court, by a majority decision, held that by the words “any person concerned with or convicted” used in Section 212(1)(a) of the Constitution (as amended) the power of pardon covered offences that a person has not been charged with and/or convicted and sentenced for and was not limited only to situations where a person has been tried, convicted and sentenced.
The decision is reported as Federal Republic of Nigeria Vs Alkali (2018) LPELR 45237 (CA).
It was sequel to this judgment that this panel of five Justices of the Court of Appeal was constituted to hear the present appeal. Counsel to the Respondent enjoined this Court to be bound by its earlier decision in Federal Republic of Nigeria Vs Alkali supra and to find likewise in this case. It is correct that the general principle in common law legal systems, like ours, is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. The doctrine is commonly referred to as the principle of stare decisis and the words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal con, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court of tribunal or by those which are bound to follow its adjudications. In other words, the Courts should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1. The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674.
The principle however admits that this Court can depart from its earlier decision in the following circumstances:
i. Where two decisions of the Court of Appeal are in conflict and the Court must choose between them;
ii. Where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
iii. Where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and
iv. Where the previous decision was reached without jurisdiction.
See Ibaku vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482.
Additionally, it is recognized that this Court sits in two panels a panel of three Justices, used for its regular sittings, and a panel of five Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Court of Appeal is equivalent to what is referred to as “en band’ sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Court of Appeal takes place where the Court is being asked to depart, or may decide to depart, from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Court of Appeal is regarded as the decision of the entire Justices of the Court, and under the doctrine of stare decisis, it can overrule a prior decision of the Court of Appeal. A decision of the Full Court of the Court of Appeal is superior to, and overrides the decision of a regular panel of the Court Bogoro Local Government Council vs Kyauta (2017) LPELR 43296(CA). Therefore, this Court cannot be circumscribed in its deliberations in this appeal by its earlier decision in Federal Republic of Nigeria Vs Alkali supra and it is not bound to follow the decision.
The provision calling for interpretation in this appeal is a constitutional provision. It is settled law that in the interpretation of constitutional provisions, a Court is not limited by the regular principles of interpretation. In the case of Prasad Vs State of Bihar (1993) 2 SCC 597, the Indian Supreme Court stated that a document like the Constitution does not have to incorporate the normal rules of interpretation. Thus, it has been held by our Supreme Court that one of main guiding posts in the interpretation of the provisions of the Constitution is that the principles upon which the Constitution was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions Attorney General, Bendel State Vs Attorney General, Federation (1982) 3 NCLR 1, Saraki Vs Federal Republic of Nigeria (2016) 3 NWLR (Pt 1500) 531, Skye Bank Plc vs lwu (2017) 16 NWLR (Pt 1590) 24.
There is always a need for the fulfillment of the object and true intent of the Constitution. Therefore, the Constitution must always be construed in such a way that it protects what it sets out to protect, and guides what it is meant to guide – Adeleke Vs Oyo State House of Assembly (2006) 6 NWLR (Pt 1006) 608. In interpreting the Constitution of a nation, it is the duty of the Court to ensure that the words of the Constitution preserve the intendment of the Constitution Okogie Vs Attorney General, Lagos State (1981) 2 NCLR 337, Abaribe Vs Speaker, Abia State House of Assembly (2002) 14 NWLR (Pt 788) 466, Marwa vs Nyako (2012) LPELR 7837 (SC). Every Constitution has a life and moving spirit within it and it is this spirit that forms the raison d’entre of the Constitution and without which the Constitution will be a dead piece of document.
The life and moving spirit of the Constitution of this country is captured in the preamble. It has been held that when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the directive principles of State Policy as the ‘book of interpretation’ and that while the Preamble embodies the hopes and aspirations of the people, the directive principles set out the proximate grounds in the governance of the country – Thakur vs Union of India (2008) 6 SCC 1. In other words, in interpreting the wordings of Section 212(1)(a) of the 1999 Constitution (as amended), the Court should be guided by the principles upon which the Constitution was established, rather than by the direct operation or literal meaning of the words used in the provision and where the literal meaning of the words are not in consonance with guiding principles, literal interpretation must be jettisoned for another approach that accords with the guiding principles of the Constitution – Abaribe Vs Speaker, Abia State House of Assembly supra, Global Excellence Communication Ltd Vs Duke (2007) 16 N WLR (Pt 1059) 22.
The interpretation that would serve the interest of the Constitution and best carries out its object and purpose must always be preferred – Kalu vs State (1998) 13 NWLR (Pt 583) 531. Now, one of the main pillars and essence of any constitutional democracy is the promotion and well being of the generality of its citizens and the provisions of the Constitution that best embodies this are those guaranteeing their fundamental rights. Fundamental rights are the basic moral guarantees that all people should have simply because they are people.
The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607. The provisions on fundamental rights contained in Chapter IV of the Nigerian Constitution thus forms part of the conscience of the Constitution and an essential feature of its basic structure and they give a deep understanding to the scheme of the Constitution Minerva Mills Ltd vs Union of India (1980) 3 SCC 625.
It is the duty of the Courts to constantly safeguard these constitutionally protected rights and thus in matters that come before them touching on any of these rights, the focus on the constitutional question must be intense and intensive and a solution which projects the essence of the constitutional guarantee must be proffered Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt 842) 113, Igwe Vs Ezeanochie (2010) 7 NWLR (Pt 1192) 61. One of the fundamental rights protected by the Constitution is the presumption of innocence provided for in Section 36(5) thereof. The presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty and this basically means that until a judicial pronouncement on the guilt or otherwise of the accused person is made, he is to be treated the same as a regular person and any suggestion to the opposite would be a breach of the fundamental rights of the individual Chidozie Vs Commissioner of Police (2018) 1 SCNJ 66, Abdullahi vs State (2018) LPELR 44491 (CA). The presumption of Innocence is the epicenter of the entire criminal justice system and administration.
Hence, it has been held that the indictment of a person by a fact-finding tribunal or Commission of Inquiry is merely an accusation and does not translate to a pronouncement of guilt and that the person so indicted remains innocent and cannot be subjected to any disability by reason thereof until his guilt is proved before and pronounced upon by a Court Action Congress Vs Independent National Electoral Commission (2007) All FWLR (Pt 378) 1012, Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227.
The essence of Section 212(1)(a) of the 1999 Constitution (as amended) is to give the Governor of a State the power of pardon. The word “pardon” has a wide connotation and it has been defined as an official decision not to punish somebody for a crime of to say that somebody is not guilty of a crime; the action of forgiving somebody for something; to officially allow somebody who has been found guilty of a crime to leave prison and/or to avoid punishment; to forgive someone for something they have said or done. It also means the act of officially nullifying punishment or other legal consequences of a crime Adeola Vs State (2017) LPELR 42327 (CA). Whichever way the word is used,it presupposes that the person to be pardoned has done something which the law presumes to be criminal or has committed an offence or is guilty of a crime. To interpret the power of pardon of the Governor of a State to include the pardon of someone whose right to a presumption of innocence is guaranteed and protected by the Constitution, and against whom there cannot be a suggestion of having done something criminal without a pronunciation of guilt by a Court of law, will be to bring the provision of Section 212(1)(a) of the 1999 Constitution (as amended) into direct conflict with the provision of Section 36(5) of the Constitution. This will be a disservice to the spirit of the Constitution because the provisions of the Constitution cannot be interpreted like an Act of the National Assembly or Laws of a State House of Assembly, being the fountain of all laws, and the Constitution is not supposed to be ambiguous and must be interpreted in a manner that gives meaning to all its provisions without ambiguity, even with the imperfection of the legal draftsman Federal Republic of Nigeria Vs Osahon (2006) 5 NWLR (Pt 973) 361, Inspector General of Police Vs All Nigeria Peoples Party (2007) 18 NWLR (Pt 1066) 457.
Further, giving the words “any person concerned with or convicted of any offence used Section 212(1)(a) of the 1999 Constitution (as amended) their literal meaning will create a legal absurdity. The words “concerned with” has been defined as meaning ‘interested in”, “having to do with”, “involved in”, or “affected by”. Thus, the literal meaning of the phrase “any person concerned with … an offence” includes the victims of the offence, witnesses to the commission of the offence, police officers Investigating the offence, etc. It will be preposterous to say that the power of pardon granted the Governor of a State in the section covers this set of persons. It is trite law that a Court must avoid an interpretation of the provision of a statute that will lead to an absurdity Awolowo Vs Shagari (1979) 6-9 SC 51, Adigun Vs Governor of Oyo State (1987) 1 NWLR (Pt 53) 678. Thus, where the literal rule of interpretation of a word or words used in an enactment will result in absurdity the Court is obliged to adopt another approach which may include giving a secondary meaning to the language used of a construction which is not quite strictly grammatical Peoples Democratic Party & 4 Ors Vs Independent National Electoral Commission (1999) 11 NWLR (Pt 626) 200, Nigeria National Petroleum Corporation Vs Zaria (2014) LPELR 22362(CA).
Additionally, it is, with respect, an affront to common sense and reason to interpret the provision of Section 212(1)(a) of the 1999 Constitution (as amended) as giving the Governor of a State the power to pardon an innocent man. There is a presumption against the legislature intending what is unreasonable and inconvenient in the interpretation of statute. Thus, it is trite that common sense must be applied in construing statutes and the construction agreeable to justice and reason must be adopted – Ibrahim vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo vs Elemuren (2008) 11 NWLR (Pt 1097) 12. The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”
Thus, where words used in an enactment are open to two interpretations and one construction will lead to an unreasonable result while the other would give effect to what commonsense shows was obviously intended, the construction that accords with commonsense must be applied.
The only plausible, workable and reasonable interpretation that can be given to the provisions of Section 212(1)(a) of the 1999 Constitution (as amended), in the light of the other provisions of the Constitution and realities of the words used therein, is that it only empowers the Governor of a State to pardon someone who has been pronounced guilty and convicted of an offence by a Court of law. It cannot be interpreted to extend the power of pardon to someone who was indicted by an administrative panel or Commission of Inquiry or who is still in the process of facing a criminal trial, notwithstanding the use of the phrase ‘any person concerned with” and the word “or” in the provision. This was the interpretation suggested by this Court in the case of Falae vs Obasanjo (1999) 4 NWLR (Pt 599) 476, where, in a similar provision of the Constitution, it stated that:
“A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence. The effect of a pardon is to make an offender a new man novus homo), to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned.”
This is also the interpretation inferable from the decisions in Obidike Vs State (2001) 17 NWLR (Pt 743) 601 and Solola vs The State (2005) All NLR 443 where the Supreme Court stated that a person who has a pending appeal against his conviction for murder and sentence to death cannot be pardoned by the President of Nigeria or Governor of a State under the provisions of Sections 175 and 212 of the 1999 Constitution (as amended) until the appeal has been heard and determined. In other words, that there can be no pardon until it is certain that the accused person has been finally convicted.
Counsel to the Respondent placed heavy reliance on the decision of the United States Supreme Court In Ex-parte A. H. Garland (1865) US Supreme Court Reports, 18 Lawyers Edition, Wallace 3-6 at page 360 where the Court stated that “pardon power extends to every offence known to law and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency or after conviction and judgment.” It is trite in our legal jurisprudence that the application of legal principles established in decided cases cannot be carried out in a mechanical “one size fits all” manner. They are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by our Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 N WLR (Pt 1333) 506 at 538A when the Court stated that:
“Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case.”
Where the application of the interpretation of the power of pardon by the United States Supreme Court in Ex-parte A. H. Garland supra will create a legal absurdity and bring about conflict between our constitutional provisions, as shown above, it is only reasonable that other interpretations be followed.
Moreover, the interpretation of constitutional provisions is local and the Nigerian Courts will not stray away from their course of interpreting the Nigerian Constitution by resorting to foreign decisions which were decided strictly in the con of their Constitutions and which are not similar to ours. In Olafisoye Vs Federal Republic of Nigeria (2004) 4 NWLR (Pt 864) 580, Niki Tobi, Jsc, made the point thus: “It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court, but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari materia with our own. It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give Nigerian legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our local legislation in question. A ‘copy-cat’ transposition of an English decision may in some circumstances turn out to be inimical to justice in our Courts.”
There is nothing suggesting that the provisions considered by the United States Supreme Court in the case are the same or similar to our present constitutional provisions and that the circumstances of the decision are the same as those in this case. And we have local decisions that infer and suggest a different interpretation. The interpretation of the power of pardon by the United States Supreme Court in Ex-parte A. H. Garland supra cannot be applied in the present case.
Another issue raised in the appeal is whether or not the Instrument of Pardon should state on its face that the power was exercised by the Governor after due consultation with the Advisory Council of Prerogative of Mercy and where it does not, what is the effect. Counsel to the Appellant argued that the Instrument of Pardon should so state it on its face and that failure to do so renders it incompetent while Counsel to the Respondent submitted that the Instrument need not say so and failure to do so cannot be fatal as it enjoys a presumption of regularity under the provisions of the Evidence Act. Now, Section 212(2) of the 1999 Constitution (as amended) provides that the power of the Governor to grant pardon “shall be exercised by him after consultation with such Advisory Council of the State on Prerogative of Mercy as may be established by the law of the State.” There is an Advisory Council on Prerogative of Mercy in Sokoto State established by the Advisory Council on the Prerogative of Mercy (Establishment) Law, Cap 108, Laws of Sokoto State.
The word used in Section 212(2) of the Constitution is “shall” and from the manner of its usage, it connotes compulsion. It is thus mandatory for the Governor of a State to consult with its State’s Advisory Council on Prerogative of Mercy before exercising the power of pardon. It is my understanding that the essence of the requirement for consultation is to guide and guard the exercise of the power and save it from arbitrariness, impunity, abuse and political aggrandizement. It is to prevent the power from being turned into an avenue for dispensing political favors and to ensure that it is exercised only in deserving cases. It is my view that it is appropriate and show political correctness to state on the Instrument of Pardon that the power was exercised in consultation with the Advisory Council on Prerogative of Mercy. However, I believe it will be stretching it a bit too far to say that an Instrument of Pardon is incompetent for failing to say so on its face. Section 168 (1) of the Evidence Act raises a presumption of regularity in favor of such an Instrument of Pardon, as in the instant case; that the power was exercised by the Governor in due consultation with the Advisory Council on Prerogative of Mercy. It was for the Appellant to rebut the presumption.
It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is merit in this appeal. I too allow the appeal and hereby set aside the Ruling of the High Court of Sokoto State in Charge No SS/33C/2009 delivered by Honorable Justice Bello Abbas on the 29th of June, 2017, discharging and acquitting the Respondents of the offences charged. I abide the consequential order contained in the lead judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in advance the lead judgment just delivered by my learned Brother Justice Jummai H. Sankey JCA. I am in absolute agreement with the entire reasoning therein, and the conclusion that the Appeal is meritorious and should be allowed and is hereby allowed. The Ruling of Sokoto State High Court in case number SS/33C/2009 delivered on 29th July, 2017 is hereby set aside. I abide by all the consequential order contained in the lead judgment.
The Respondent alongside others were standing trial before the High Court Sokoto for a one hundred and forty four count amended charge for the offences including conspiracy, breach of trust, receiving stolen property punishable under the Penal Code Law applicable in Sokoto State of Nigeria. As the trial commences, the Appellant’s counsel was on the eighth witness, when the Respondent’s counsel filed a motion on notice praying the Court for an order discharging the Respondent from the charges as the Governor of Sokoto State has granted the Respondent unconditional pardon; pursuant to Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria (1999) as amended.
Appellant’s counsel filed a counter affidavit in opposition to the application, while the Respondent filed a further affidavit. The lower Court delivered a ruling on 29/06/2017 and discharged the Respondent. Section 212 (1) of the 1999 Constitution as amended provides: –
“The Governor may;-
a) Grant any person concerned with or convicted of any offence created by any law of a State a pardon, either free or subject to lawful conditions.
The fundamental question before this Court is what is the meaning of the phrase “concern with or convicted of any offence” in Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999; whether it includes the Respondent who has not been convicted of any offence but was standing trial for an allegation of commission of an offence under the Penal Code Law of Sokoto State.
There must be guilt for the exercise of pardon to be activated, taking into consideration the presumption of innocence in Section 36 of the 1999 Constitution.
It therefore follows that the power of a Governor to grant pardon, is only exercisable after the person to be pardoned has been convicted and/or has exhausted his right of Appeal against his conviction. See C.O.P. V. ALI (2003) FWLR (Part 157) 1164 at 1180 (CA).
Appearances:
Chile Okoroma, Esq. (Director, Legal & Prosecution Department EFCC) with him, M.S. Abubakar, Esq. (Chief Legal Officer)
Aishatu Ibrahim, Esq. (Senior Legal Officer) and Musa Isah, Esq.For Appellant(s)
S. Atung, Esq. with him, T.O. Adeboye, Esq. and Q.E. Sylvester, Esq.For Respondent(s)
