FEDERAL REPUBLIC OF NIGERIA v. ALH. TUKUR ALKALI & ANOR
(2018)LCN/11900(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
RATIO
COURT AND PROCEDURE: PREROGATIVE OF MERCY
“It is pertinent to stress here that prerogative of mercy is clearly distinguishable with other prerogatives such as amnesty, condonation and nolle Prosequi. Although they are all legal apparatus used at one point or the other in criminal matters and exercised by the executive arm of government, they are not the same. Amnesty is an act of the sovereign power granting oblivion, or a general pardon, for a past offence, as to the subject concerned in an insurrection. Thus, it is an official statement allowing people who have been put in prison for crimes against the state to go free. See ADEOLA V. STATE (2017) LPELR 42327 (CA) Condonation is the voluntary overlooking and implied forgiveness by treating offender as if the offence had not been committed.” PER FREDERICK OZIAKPONO OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Sokoto State sitting at Sokoto Coram: ABBAS BELLO, J. delivered on the 29th day of June, 2017 wherein the Court discharged the Respondents of the charges against them in case no. SS/33C/2009 on grounds that they have been granted unconditional pardon by the Governor of Sokoto, Rt. Hon. AMINU WAZIRI TAMBUWAL CFR pursuant to an instrument of pardon dated 29th day of September, 2016 (i.e. Exhibit A).
The Respondents alongside others were standing trial before the Court by virtue of a one hundred and forty-four count Amended Charge dated 11th day of January, 2010 for sundry offences including conspiracy, breach of trust, receiving stolen property, all punishable under the Penal Code applicable in Sokoto State of Nigeria. The 1st Respondent was charged in 112 counts; while the 2nd Respondent was charge in counts 13 to 138, 141-143. (See pages 7-81 of the Record of Appeal). The trial had commenced hearing and the Appellant’s Counsel were calling their witnesses, when the Respondents through their Counsel filed a motion on notice dated 4th day of April, 2017 praying the Court inter alia for an order discharging them from the charges in the case on grounds that they had been granted unconditional pardon by the Governor of Sokoto State. (See pages 84 – 90 of the Record of Appeal). The Appellant’s Counsel in opposition to the Respondents’ motion on notice filed a counter affidavit sworn to on the 28th day of April, 2017. (See pages 91-93 of the Record of Appeal).
The motion on notice was argued on the 25th of May, 2017 by Counsel to the parties. (See pages 94 to 100 of the Record of Appeal). The Court delivered its ruling on the 29th of June, 2017 granting the prayers of the Respondents and discharged them from the charges against them in the case on grounds that they had been granted unconditional pardon by the Governor, pursuant to an instrument of pardon dated 29th day of September, 2016 (i.e. Exhibit A). (See pages 101-110 of the Record of Appeal).
Dissatisfied with the ruling of the Court, the Appellant has Appealed to this Court vide a Notice of Appeal filed on the 22nd day of September, 2017. (See pages 111 to 117 of the Record of Appeal).Pursuant to the leave of Court granted on 29th January, 2018 the Appellant on 1st February, 2018 filed an Amended Notice of Appeal dated 15th January, 2018. There are four grounds of Appeal filed, which are reproduced here along with their particulars as follows:
GROUNDS OF APPEAL:
1. The learned trial Court erred in law when it held that:
In the result therefore, an Order is hereby made discharging the Accused/Applicants namely ALH. TUKUR ALKALI AND BELLO from the charge in Case No. SS/33C/2009 pending before this Court, having been granted unconditional State pardon by the Governor of Sokoto State, pursuant to Section 212 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”
PARTICULARS OF ERROR
i. The Respondents (i.e. Defendants/Applicants) trial were still ongoing and they had not been convicted of any offence before the Governor of Sokoto State Rt. Hon. Aminu Waziri Tambuwal CFR purportedly granted them pardon by Exhibit A, the instrument of pardon, in the purported exercise of powers conferred on him under Section 212(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999.
ii. There must be a conviction before a person is pardoned for a criminal offence, and the Respondents had not been convicted of any offence as at the time the Governor of Sokoto State purported to have granted them pardon by Exhibit A.
iii. A person cannot be said to have committed or been convicted of an offence if he has not been found guilty of that offence by a Court of competent jurisdiction because every person charged with committing an offence is presumed to be innocent until he is proved guilty.
iv. It is contrary to the principle of presumption of innocence enshrined under Section 36(5) of the 1999 Constitution to purport to pardon a person for a criminal offence when he has not been convicted of the offence by a competent Court.
v. The provision of Section 212(1) (a) of the Constitution is inapplicable in the circumstances of this case.
vi. The Governor of a State can only exercise his power of prerogative of mercy in relation to person who has been proven to have committed or convicted of a State offence by a Court of competent jurisdiction and not otherwise.
2. The trial Court erred in law when it proceeded to discharge the Respondents on the grounds that they have been granted unconditional pardon for the offences for which they were facing trial in charge no. SS/33C/2009 despite the fact that the instrument of Pardon Exhibit A showed that the Governor of Sokoto State did not comply with the mandatory provision of Section 212(2) of the 1999 Constitution.
PARTICULARS OF ERROR:
i. Section 212(2) of the 1999 Constitution provides a condition precedent before the Governor of a State can exercise the power to grant pardon or exercise the power of prerogative of mercy under Section 212(1).
ii. The condition precedent to the exercise of the power under Section 212 (1) is that the Governor shall consult with advisory council of the State on the Prerogative of Mercy before exercising the power.
iii. The Instrument of pardon, Exhibit A shows that the mandatory requirement of Section 212(2) of the Constitution was not complied with by the Governor of Sokoto State in the instant case. Being a condition precedent, the said requirement must be expressly shown to have been complied with.
iv. Where legislation (in this case, the Constitution) has laid down a procedure for doing a thing, such a thing cannot be done by any means other than the one so laid down.
v. The essence of Subsection (2) of Section 212 of the Constitution is to ensure that the Governor is properly guided and the balance between the interest of the individual concerned and that of the public is properly maintained.
3. The trial Court erred in law and on the facts when it held that:
“On careful consideration of the submissions of both Counsel regard being heard to the affidavit evidence placed before this Court and by interpreting the word “and” to mean in addition to, used in Exhibit A it is a matter of giving effect therefore to the pardon granted by the Governor as contended (sic) in Exhibit A regard being had to the Constitutional provisions of Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the fact that the legality of the pardon is not questioned by the Complainant/Respondent. The application is meritorious and therefore is hereby granted accordingly.”
PARTICULARS:
i. Exhibit A dated 29th of September, 2017 which is the instrument of pardon under the hand of the Governor of Sokoto State, RT. Hon. Aminu Waziri Tambuwal CFR did not make reference to the pending charge no: SS/33c/2009, which was filed since 2009.
ii. The Governor of Sokoto State was aware or deemed to be aware of the pendency of the charge no: SS/33C/2009 as at the time he issued Exhibit A.
iii. If the Governor of Sokoto State had intended the pardon to extend to the pending charge no: SS/33C/2009 he would have specifically and expressly stated so by reference to it in Exhibit A.
iv. The Respondents failed to prove that the pardon purportedly granted to them by the Governor of Sokoto State was connected to the case for which they were standing trial despite the fact that the Appellant joined issues with them on that point.
v. The counts of the charge on which the Respondents were charged did not make reference to any indictment of the Respondents by the Report of Alhaji Muhammad Aminu Ahmed’s Commission of Inquiry and the Government White Paper dated 28th October, 2009 referred to as Exhibit A.
vi. The Appellant deposed in paragraph 4 of its counter Affidavit that the trial of the Respondents in the pending charge no: SS/33C/2009 was consequent upon the investigation conducted by operatives of the Economic and Financial Crimes Commission (EFCC) pursuant to a written complaint/petition received from the then Attorney-General of Sokoto State, Inuwa Abubakar Esq., and intelligence report gathered by the EFCC.
vii. The trial Court ought to have found that the Respondents failed to prove that the pardon purportedly granted to them by the Governor of Sokoto State was connected to the case for which they were standing trial since the Appellant joined issues with them on that point.
viii. A party cannot expressly or impliedly consent to an action that is contrary to the intendment of the provisions of the Constitution.
4. The learned trial Court erred in law when it held as follows:
The word “and” used when construed, leave no one in doubt as to the intendment of the pardon per the Instrument in Exhibit A.
The phrases/words “and” any criminal offence they might have been accused of against the Laws of Sokoto State used, the Exhibit A. Instrument has been written in simple and clear language and wide enough in my respectful view to accommodate the circumstances of the Accused/Applicants and that going by the definition of the word “and” in OGUNYADE vs. OSHUNKEYE (supra) to mean, to be added to, the pardon per Exhibit A covers or extends to the charge before this Court being wide enough to cover the offences in the charge pending before this Court”.
PARTICULARS:
i. By the ejusdem generis principle of interpretation or construction 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 or connected to the indictment of the Respondents by the Report of Alh. Muhammed Aminu Ahmad’s Commission of Inquiry and the Government White Paper dated 28th October, 2009 and therefore exclude any other criminal offence that did not emanate there from or connected thereto.
ii. If the Governor of Sokoto State had intended the pardon to extend to the pending charge no: SS/33C/2009 he would have specifically and expressly stated so by reference to it since he was aware or deemed to be aware of its pendency.
iii. Exhibit A was couched in ambiguous terms and therefore required the use of the ejusdem generis canon of construction to discern the intention of the Governor of Sokoto State.
iv. The counts of the charge against the Respondents did not make reference to any indictment of the Respondents by the Report of Alhaji Muhammad Aminu Ahmed’s Commission of Inquiry and the Government White Paper dated 28th October, 2009.
v. The Appellant deposed in paragraph 4 of its counter affidavit that the trial of the Respondents in the pending charge no: SS/33C/2009 was consequent upon investigation conducted by operatives of the Economic and Financial Crimes Commission (EFCC) pursuant to a written complaint/petition received from the then Attorney-General of Sokoto State, Inuwa Abubakar Esq., and intelligence report gathered by the EFCC.
ISSUES FOR DETERMINATION
Three (3) issues were nominated for the determination of this appeal by the Appellant as follows;
1. 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 grounds 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 (Ground One).
2. 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 grounds that they have been granted unconditional pardon by the Governor of Sokoto despite the fact that the instrument of pardon, Exhibit A, clearly showed that the Governor of Sokoto State, Rt. Hon. 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 (Ground two).
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 A extended or included the offences for which the Respondents was standing trial, that is charge no: SS/33C/2000, when the instrument did not specify or expressly state that the pardon was for the said offences (Grounds three and four).
On the part of the Respondent, three (3) issues were equally nominated for the determination of this Appeal thus;
1. Whether the trial Court was right in discharging the Respondents from the charges against them in case no: SS/33C/2009 on the grounds that they have been granted unconditional pardon by the Governor of Sokoto State (Ground One).
2. Whether it is a condition precedent for the validity of the instrument of pardon, Exhibit A 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 two).
3. 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 three and four).
Upon a careful and calm consideration of the issues nominated by both sides to the divide in this legal contest, what seem to stand out clearly, is the fact that the nominated issues across board are identical but for reasons of semantics.
To this end and due to reasons of comprehensiveness,the issues nominated by the Appellant shall be the basis for the determination of this Appeal. The Appellants brief of Argument filed on the 3-4-2018 was settled by CHILE OKOROMA ESQ., but deemed filed on the 23-5-2018 while the Respondents brief of Argument filed on the 26-4-2018 and settled by S. ATUNG ESQ., but deemed filed 23-5-2018. At the hearing of the Appeal on the 23-5-2018, learned Counsel adopted their briefs of Argument on behalf of their sides and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT;
ISSUE ONE;
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 grounds 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 (Ground One).
In arguing this issue, learned Appellants Counsel submitted that the power of the Governor of any State of Nigeria to grant a 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 (i.e. CFRN). Counsel reproduced Section 212 (1) (a) of the Constitution of Nigeria, 1999 as amended and further submitted that as at the time the Respondents were purportedly granted pardon by the Governor of Sokoto State and which was validated by the Court below the Respondents had not yet been convicted of any offence under the laws of Sokoto State as the trial of the Respondents was still on-going.
The contention of learned Counsel therefore, is that the fundamental questions before this Court is to determine what the meaning of the phrase: “concerned with or convicted of any offence” as used in Section 212(1)(a) of the CFRN; and whether this includes a person (in this case the respective Respondents) who were yet to be convicted of any offence, and still standing trial for an allegation of commission of offences created by any law of a State? It was further contended that under Section 36(5) the Constitution of Nigeria, 1999 a person accused of a criminal offence is presumed innocent until proven guilty. Counsel argued in addition, the mere accusation or allegation of an offence does not amount to a conviction and that the accused remains an innocent person until he is proved guilty and convicted by a competent Court. He cited the case of AMAECHI vs. INEC & ORS (2008) LPELR-446 page 1 at page 260 paras. B-F where the apex Court per ADEREMI, JSC (as he then was) stated that:
For an accusation of a criminal offence to be successfully levied against a person, such an offence ordinarily must be established before an impartial Court of law. The cardinal principle here is that once a person is accused of a crime and once the adjudicating body is anything less than a judicial body vested with criminal jurisdiction, the person so subjected to that trial before that body is as good as not having undergone any criminal trial. No matter how well conducted the trial might be, its verdict is null and void and can never foist a conviction or sentence, known to law, on the person.
Perhaps I should further say that an administrative body lacks the jurisdiction and competence to try the issue of crime, for such a body is not a Court much less a criminal Court. Only a Court vested with criminal jurisdiction is competent to hear and determine the criminality of the person accused.”
See also GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550; 1986 (VOL. 17) NSCC (PT. 1) 245 at 265 lines 5-50.
Counsel further submitted in the light of the foregoing, that a person who has not been tried before and convicted by a competent Court for an offence cannot be said to have committed or convicted of an offence as to deserve a pardon because an innocent person cannot be pardoned for any offence. He argued that in effect for a person to be concerned with an offence there must have been a conviction; that is why a pardon cannot even be granted to a person whose appeal against his conviction by a trial Court, which has been affirmed by the Court of Appeal and is pending at the Supreme Court. He cited in support of this proposition, to the case of MONSURA SOLOLA & ANOR vs. THE STATE (2005) 2 NWLR (PT. 937) 460 at 488-489 para. G-B where the apex Court per EDOZIE, JSC, (as he then was) delivering the lead judgment, said this concerning pardon or prerogative of mercy.
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 (sic) or 212 of the 1999 Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person. In the same vein, such person cannot be executed before his Appeal is disposed of. It is hoped that the prison authorities will be guided by this advice.
See also OKONGWU vs. STATE (1986) 5 NWLR (PT. 44) 741 at 750 paras. G-H where the Supreme Court per OGUNDARE, JSC (as he then was) held that:
Pardon is usually granted where a convict has exhausted all his legal rights of appeal, has no intention of exercising such right; where he is wrongfully convicted and is afterwards pardoned upon the ground of his innocence.”
Counsel also submitted that going by the ejusdem generis canon of interpretation, the general phrase: “any person concerned with” in Section 212(1)(a) of the CFRN means a particular class of people convicted of any offence.
According to Counsel, the canon 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. He also explained that 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.
It was also contended by Counsel that the provisions of the Constitution ought to be interpreted holistically. He cited the case of ACTION CONGRESS vs. INEC 2007 ALL FWLR (PT. 378) 1012 at 1037) and argued that the phrase “any person concerned with” as used in Section 212(1) (a) aforesaid should be interpreted in line or consistently with the presumption of innocence in Section 36(5) of the same CFRN to the effect that Section 36(5) constricts the phrase to a person who has been convicted for an offence. By the said section he said that a narrow interpretation is given to the provisions of the Constitution where it will carry out the object and purpose of the Constitution. Counsel also cited the case of SKYE BANK PLC vs. IWU (2017) LPELR-42595.
According to Counsel to do otherwise will lead to absurdity, because “any person concerned with an offence” if given a wide interpretation would apart from the person who is accused of or standing trial for an offence, mean any person in the criminal justice chain, or who has anything to do with regards to an offence including investigators who are concerned with the investigation of the offence,the prosecutors who are concerned with the prosecution of an offence, and not to mention the judges or magistrates who are concerned with trial of an offence.
On account of the contention of the Respondents at the trial Court that their trial in the case no: SS/33C/2009 was as a result of their indictment by Ahmed’s Commission of Inquiry and the Sokoto State Government White Paper thereon; and the reference of Exhibit A to the said Commission of Inquiry and the White Paper dated 28th October, 2009 in the Nature of Pardon, Counsel was of the view that it does not avail the Respondents. This, he said is because it is only a Court that can convict a person of an offence and not an Administrative body, and that an indictment is not a conviction.
Counsel cited the case of FALAE vs. OBASANJO (1999) 4 NWLR (PT. 599) 476 @ 495 para D-E, where this Court per MUSDAPHER, JCA (as he then was) 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. See VERNECO INC vs. FIDELITY & CAS C. OF NEW YORK 253 LA 721, 219 SO 2D 508, 511. The effect of a pardon is to make the offender a new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned.”
Counsel, therefore, argued that the Respondents who had not been convicted of any offence as at the time the purported pardon was granted could not be said to have been made novus homo by Exhibit A as they were presumed innocent until proved guilty. He further argued that the trial Court was therefore not right when it discharged the Respondents from the charges against them in the case no: SS/33C/2009 on the grounds that they have been granted unconditional pardon by the Governor of Sokoto State. He urged this Court to so hold and resolve this issue 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 grounds that they have been granted unconditional pardon by the Governor of Sokoto despite the fact that the instrument of pardon, Exhibit A, clearly showed that the Governor of Sokoto State, Rt. Hon. 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 (Ground two).
In arguing this issue, learned Appellants Counsel referred Court to Section 212 (2) of the Nigerian Constitution, 1999 and contended that the exercise of the power of the Governor of a State to grant a pardon to any person concerned or convicted for an offence under the laws of the State is not based on his whims and caprices as the Constitution clearly spells out the condition precedent, which he must comply with before doing so. Counsel further contended that the Appellant fortified in this assertion by the use of the word: “shall” in the said provision by the framers of the Constitution. Counsel cited the case of NATIONAL ASSEMBLY vs. C.C.I. CO. LTD (2008) 5 NWLR (PT. 1081) 519 at P.540 paras. D – G where this per OMOLEYE, JCA stated as follows:
The word “shall” is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion. In whatever way it is used, whether in a mandatory or directory sense, there has to be fulfillment of such mandate or directive. The word “shall” make the provision of a statute mandatory and preemptory…
Having stated this, the poser at this juncture, according to Counsel is whether the Governor of Sokoto State complied with the condition precedent before issuing Exhibit A? Counsel argued that Section 2 of the Advisory Council on the Prerogative of Mercy Law Cap. 108 Laws of Sokoto State, provides for the Advisory Council, which the Governor must consult with before exercising the power vested in him in Section 212(2) of the CFRN.
He said that Exhibit A clearly shows without any ambiguity or equivocation that the Governor of Sokoto State did not consult with the Advisory Council of Sokoto State on the Prerogative of Mercy as required by the law as he did not state in the said Exhibit A that he did. Counsel cited the case of INAKOJU vs. ADELEKE (2007) 4 NWLR (PT. 1025) 427 where Supreme Court per TOBI, JSC (OBM) emphasized this position of the law as follows:
“It is good law that where the Constitution or a statute provides for a pre-condition to the attainment of a particular situation, the precondition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached, our common and popular pet expression is “condition precedent” which must be unfulfilled before the completion of the journey…”
Arising from the foregoing therefore, Counsel submitted that since the Governor of Sokoto State did not comply with the mandatory requirements as stipulated in Section 212(2) of the CFRN, Exhibit A was a nullity and the trial Court was wrong in giving effect to it and discharging the Respondents on the grounds that it availed the Respondents.
It is further argued by Counsel that it is imperative that the Governor consults with Advisory Council on Prerogative of Mercy before exercising his power under the said Section 212(1) of the CFRN so as to obviate the possibility of abuse of power and effectively balance the interest of the beneficiary of the pardon on one hand and that of the State or the public on the other. See OKENWA vs. MILITARY GOVERNOR, IMO STATE (1997) 6 NWLR (PT. 507) 136 at 161 paras D-E. Counsel on this issue, urged this Court to resolve issue two in favour of the Appellant.
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, that is Exhibit A extended or included the offences for which the Respondents was standing trial, that is charge no: SS/33C/2000, when the instrument did not specify or expressly state that the pardon was for the said offences (Grounds three and four).
In his arguments on this issue, learned Counsel stated that the case no.SS/33C/2009 against the Respondents and others in the trial Court was commenced by their arraignment on the 16th of December, 2009. (See pages 34 to 43 of the Supplementary Record of Proceedings) and that the charge was amended by the Amended Charge dated 11th January, 2010 (See Pages 7-81 of the Record of Appeal).
According to Counsel, Exhibit A circumscribed the Nature of Pardon as follows:
“NATURE OF PARDON
The Indictment by the Report of Alhaji Muhammad Aminu Ahmad’s Commission of Inquiry and the Government White Paper dated 28th October, 2009 and six 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.”
Arising from the foregoing and especially with the contention of the learned Counsel to Respondents at the Court below and which was upheld by the Court, where it was argued that the words used in Exhibit A under the Nature of Pardon were wide enough to cover the offences for which the Respondents were standing trial, the contention of Appellants Counsel is clearly to the contrary. Counsel accordingly submitted that the Respondents failed to prove that they were standing trial on account of the recommendations of the Government White Paper and the Report of the said Commission of Inquiry; that all the Respondents did was to make bare depositions in paragraph 3.1 to that effect, whereas none of the counts of the charge before the Court below against the Respondent (i.e. counts 4-67) made reference to any Report of the Commission of Inquiry and/or the White Paper issued pursuant to it. Counsel further argued that the Respondents also did not proffer any credible evidence to show the link between their trial in case no: SS/33C/2009 and the said Report of the Commission of Inquiry and/or the White Paper, thereon.
It was also contended by Appellants Counsel that on the contrary, the Appellant deposed in its counter affidavit at paragraphs 4, 5 and 6 through one Reuben Omosigho, an operative of the EFCC who was part of the team that investigated the case that led to the charge no: SS/33C/2009, is as a result of investigation conducted by the operatives of EFCC sequel to a written petition received from the then Attorney General of Sokoto State in the person of Inuwa Abdul kadir Esq., as well as on the basis of intelligence report received by the EFCC. In addition, that the said written complaint of Inuwa Abdul kadir Esq., was filed before the Court below as part of the proof of evidence and of which this Court can take judicial notice. Furthermore, that it is not true that charge no: SS/33C/2009 was filed against the accused/applicants as a result of the indictment by Alhaji Muhammed Aminu Ahmad’s Commission of Injury and the White Paper issued by Sokoto State Government in respect thereof. (See pages 91-93 of the Record of Appeal).
According to Counsel, from the depositions in the counter affidavit of the Appellant, it is patently clear that the Appellant effectively joined issues with the Respondents on the basis of the charge against him, which the Court ought to have resolved by credible evidence. But rather, abdicated that responsibility and jumped into other conclusions. The argument of Counsel therefore is that where there is a failure, a commission or omission by a trial Court in relation to an act, which the trial Court ought to do or refrain from doing, that this Court is in as good a position as the trial Court to do or refrain from doing that act. He further argued that where a trial Court fails to make a finding on an issue duly joined by the parties on their pleadings in a case, an Appellate Court will order a retrial where the evidence/facts is/are of such a nature that it cannot make its own findings. He cited the case of DAKIPIRI ODI vs. HARRISON IYALA (2004) 4 SCNJ 35 AT 55-56. Counsel urged this Court to exercise its powers under Section 15 of the Court of Appeal Act to make a finding on this point and we urged this Court on a balance of probabilities to hold that the Respondents failed to prove that their trial in charge no. SS/33C/2009 was connected to the Report of Ahmad’s Commission of Inquiry and the White Paper issued thereon referred to in Exhibit A.
On the question of whether the pardon granted is limited to any offences or criminal proceedings against the Respondents arising from the said Report and Government White Paper or wide enough to cover any offences or criminal proceedings whatsoever against the laws of Sokoto State whether arising from the said Report and Government White Paper or not, Counsel submitted that despite the use of the words: and any criminal offence they might have been accused against the Laws of Sokoto State”, Exhibit A constricted the pardon to any offences or criminal proceedings arising from the said Report and White Paper and no more. He argued that case no: SS/33C/2009 was already pending in Court as at the 29th of September, 2016 when the Governor, signed or issued Exhibit A and that in effect, the Governor was aware or deemed to be aware of the case and that if he had intended the pardon to extend to the case, he would have expressly stated that the pardon is or extends to the charges against Respondents in the charge no: SS/33C/2009 pending in Court. He argued that having not done so, it simply means that his intention was that the pardon should not extend to it.
According to Counsel, the use of the words: “and any criminal offence they might have been accused of against the Laws of Sokoto State”, does not make the pardon wide enough to avail the Respondents whether or not the offences they were accused of were connected to the said Report of the Commission of Inquiry and White Paper.
He said that to give it such an interpretation would lead to gross absurdity because it would include any conceivable offences the Respondents might have been accused of whether known or unknown to the Governor including possibly, the ones that may have been undergoing investigation; that this obviously could not have been the intention of the Governor.
Counsel also contended that the Nature of the Pardon as couched in Exhibit A is ambiguous and consequently, the only option for eliciting or discerning the intention of the Governor is to call to aid the ejusdem generis principle of interpretation under which 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 Alhaji Muhammed Aminu Ahmad’s 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 connected to it. According to Counsel, this is more so when the word: “and” which is conjunctive in the con is used and not disjunctive as held by the trial Court. He also said that even if the word “or” was used the tenor of con would still make the word conjunctive, thereby narrowing the general words to offences connected to the Report of Commission of Inquiry and the White Paper. Counsel cited the case of IZEDONMWEN & ANOR vs. UBN PLC. & ANOR (2011) LPELR-4020(CA).
Counsel therefore submitted that the Nature of Pardon in Exhibit A is limited to any offences or criminal proceedings against the Respondents arising from the said Report and Government White Paper,and not wide enough to cover any offences or criminal proceedings whatsoever against the laws of Sokoto State whether arising from the said Report and Government White Paper or not as concluded by the Court below. He urged this Court to resolve this Appeal in favour of the Appellant and set aside the judgment of the Court below.
RESPONDENT;
ISSUE ONE:
In arguing this issue, learned Respondents Counsel submitted that in our jurisprudence and for which there can hardly be any contrary argument an appeal is a continuation of the case commenced at the trial Court.
He cited the case of IJARAFU vs. DZUGU (2011) 17 NWLR [PT. 1276] Page 360 AT Page 370 paras E – F Viz: – where the Court held that;
“An appeal is thus considered as a continuation of the original suit before the trial Court rather than the beginning of a new suit. Oredoyin V. Arowolo (supra); Babalola v. State (1989) 4 NWLR [PT. 115] 264; Ngige V. Obi (2006) 14 NWLR [PT. 999] 1.”
According to Counsel, the foregoing constitutes the jurisprudential reasoning behind the statement of the law that a party must be consistent in stating/prosecuting his case as he cannot by law state a different case at the Court of Appeal, which is different from his case before the trial Court. Counsel also cited the cases of ADEOSUN vs. GOVERNOR OF EKITI STATE (2012) ALL FWLR [PT. 619] Page 1044 at Page 1064 paragraphs A C; DR. NGIGE vs. MR. OBI & ORS (2005) All FWLR [PT. 330] Page 1041 at P. 1091 to 1092 paras C – B.
Against the backdrop of this position, Counsel pointed out that in the instant case learned Counsel for the Appellant, while opposing Motion No. SS/M.126/2017, which is the subject matter of this Appeal had this to say viz: –
“I am relying on all the paragraphs in the Counter-affidavit. I adopt my arguments in the earlier applications in Motions numbers SS/M.89/2017 and SS/M.158/2017.” (Please see page 99 of the record of appeal).
As it relates to Motion no: SS/M.89/2017, Counsel further pointed out that learned Counsel for the Appellant in opposing the said motion on notice submitted inter-alia as follows: –
” The powers of the Governor of Sokoto State to grant a pardon to a person concerned with or convicted for an offence created by law of a State is prescribed under Section 212(1)(a) of the Constitution of the FRN as amended is not being questioned by the Complainant/Respondent.” (Please see page 106 of the supplementary record of appeal).
According to Respondents Counsel, it is the foregoing submission of learned Counsel for the Appellant inter-alia that informed the finding of fact of the trial Court at pages 107 of the record of appeal thus: –
“My understanding of the contention of the learned Counsel of the Complainant/Respondent is that they conceded to the fact that, the Governor has power to pardon but that in the circumstances of this case, the Applicants have not shown how the said pardon in Exhibit A is relevant to the charge before this Court as it has not been shown that the Commission of Inquiry and the White paper formed the basis of the trial of the Accused/Applicants in charge no: SS/33C/2009 pending before this Court.”
Arising from the foregoing finding of fact by the trial Court learned Respondents Counsel argued that the concession of the Appellant constitutes an ISSUE ESTOPPEL between the parties herein and that for this reason, the submissions and decided cases cited by the Appellant’s Counsel would have been more appropriate at the stage when the Respondents moved their motion no: SS/M.126/2017 before the trial Court. For this reason, Counsel further argued that the Appellants are estopped from raising quite belatedly all the arguments on whether the Governor of Sokoto State has power to pardon the Respondents. Counsel cited the cases of THE HONDA PLACE LTD vs. GLOBE MOTORS LTD (2005) 14 NWLR [PT. 945] 273 at p. 297 paras D G; HOUSETEAD vs. COMMISSIONER OF TAXATION [1926] AC 155 at 165; OGBOGU vs. NDIRIBE [1992] 6 NWLR [PT. 245] 40 at Pp: 67 -69 paras E – C, at Pp. 68 – 69 paras F C.
In assuming (but without conceding) that the Appellants can at this stage challenge the powers exercised by the Governor of Sokoto under Section 212(1)(a) 1999 Constitution, Counsel contended that this issue for determination then brings into sharp focus the provisions of Section 212(1)(a) of the 1999 Constitution (as amended) and argued that the said Constitutional provision shows clearly that there are two limbs to the category of persons who can be beneficiaries or subject matter of pardon i.e. “any person concerned with or convicted of any offence.”
In his arguments on the subject, Counsel said that the use of the word ‘or’ in Section 212(1)(a) by the framers of our Constitution is deliberate to convey a disjunctive meaning, which is in harmony with Section 18(3) of the Interpretation Act, CAP. 123 LFN, 2004, which provides that the word “or” and the other shall, in any enactment, be construed disjunctively and not as implying similarity.” Counsel cited the case of ABUBAKAR vs. YAR’ADUA (2009) ALL FWLR (PT. 457) Page 1 at pages 76 – 86 paragraphs G D.
With this at the background, Counsel argued further that it is as clear as crystal that the sentence ‘any person concerned with’ or ‘convicted of any offence’ are distinct and separate and he craved this Court to so hold.
Against the backdrop of this position, Counsel contended that a cursory look at the authorities cited and relied upon by learned Appellants Counsel will reveal that they relate to the 2nd limb of Section 212 (1)(a) of the 1999 Constitution i.e. ‘convicted of any offence’ and consequently the first limb of Section 212(1)(a) i.e. ‘any person concerned with’ was not directly construed. He urged this Court to distinguish the facts and circumstances of those cases cited by the Learned Counsel for the Appellant from that in the instant appeal.
In the situation of obvious dearth of an express judicial pronouncement on the meaning ascribable to the expression, ‘any person concerned with’ as appearing in Section 212(1)(a) of the 1999 Constitution, Counsel resorted to the BLACKS LAW DICTIONARY, EIGHT EDITION in defining the word “pardon”. According to Counsel the definition accords with/or is in harmony with Section 212(1)(a) of the 1999 Constitution.
It was further argued by Counsel that the word: “Punishment” obviously pertains to/is relative to “conviction”, which is a condition precedent to punishment and that the expression: ‘other legal consequences of a crime’ cannot by any stretch of imagination be said to have any nexus with “conviction”. For the avoidance of doubt, he said that ‘other legal consequences of a crime’ could include criminal prosecution, which normally ensues after the commission of a crime. Counsel also urged this Court to hold that pardon is in general, an act of forgiving a crime and it nullifies punishment or other legal consequences of a crime such as legal prosecution as in the instant appeal.
Learned Counsel also contended that the submission in the foregoing paragraph is amply demonstrated by the Supreme Court of the United States of America while construing the power of pardon under Article 11, Section 2 of the United States Constitution. He said that the United States of America operates a Federal System and it there from there that our presidential system/Constitution is borrowed. He cited the case of case of EXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 – 6 at Page 300 thus: –
“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.”
Counsel urged this Court to be persuaded by the foregoing case decided by the U. S. Supreme Court. Counsel further argued that in our jurisprudence, the law recognizes the fact that an offence can be condoned as is the case with the provisions of the Armed Forces Act, construed in the case of NIGERIAN ARMY vs. AMINUN KANO (2010) 5 NWLR [PT. 1188] Page 429 at page 467 paras C – A. Counsel urged this Court to resolve this issue in favour of the Respondents.
ISSUE TWO;
Under this issue, Counsel once again stated that an appeal is a continuation of the case commenced at the trial Court and this is the jurisprudential reasoning behind the statement of the law within our jurisdiction that a party should be consistent in prosecuting his case at the trial Court as well as on Appeal. He insisted that there should be no somersault and cited the cases of IJARAFU vs. DZUGU (supra) and ADEOSUN vs. GOVERNOR OF EKITI STATE (supra). He contended that in the instant case, learned Counsel for the Appellants while opposing Motion No. SS/M.126/2017, which is the subject matter of this appeal had this to say viz: –
“I am relying on all the paragraphs in the Counter-affidavit. I adopt my arguments in the earlier applications in Motions numbers SS/M.89/2017 and SS/M.158/2017.” (Please see page 99 of the record of appeal).
As it relates to Motion no: SS/M.89/2017, Counsel further stated that learned Counsel for the Appellant in opposing the said Motion on Notice said inter-alia: –
“Furthermore, Complainant/Respondent is not also questioning the legality of Exhibit A pardon annexed to the application.” (Please see Page 107 of the supplementary record of appeal).
According to learned Respondents Counsel, it is the foregoing submission of learned Counsel for the Appellant inter-alia that informed the finding of fact of the trial Court at pages 106 – 107 of the record of proceedings thus: –
“This Court has earlier on ruled in Motion Nos. SS/M89/2017 as well as SS/M158/2017.
The arguments are basically the same and the Complainant/Respondent have conceded to the undisputed fact that the Governor has the power to grant pardon as per his powers as preserved by S. 212 of the 1999 Constitution but in this case the pardon as expressed in the face of the instrument of pardon Exhibit ‘A’ does not extend or cover those charges the Applicants are standing trial before this Court as Exhibit A was not specific and that the commission of inquiry and white paper referred to were not the basis upon which those charges were filed.
The argument of Respondents Counsel on this issue is that the validity of the instrument of pardon Exhibit ‘A’ annexed to Motion Nos. SS/M/126/2017 constituted issue estoppel as between the parties in this appeal and the Appellant is not allowed to derogate there from by way of somersault on Appeal. Counsel referred to Section 169 Evidence Act, 2011 and the following cases: HONDA PLACE LTD vs. GLOBE MOTORS LTD (supra), OGBOGU vs. NDIRIBE (supra).
In assuming (but without conceding) that the Appellant can validly impugn the instrument of pardon i.e. Exhibit ‘A’ attached to Motion No: SS/M/126/2017 in the trial Court,Counsel submitted that the ground upon which the Appellant purports to do so in this Appeal is untenable in law regards being had, to the fact that the only ground the Appellant is challenging the validity of Exhibit ‘A’ is that on the face of it, it is not stated that the Governor of Sokoto State consulted with the State Advisory Council on prerogative of mercy before the making thereof.
Counsel further argued that the foregoing stance of the Appellant is with the greatest respect rather absurd/incongruent having regards to the fact that there is nothing in Section 212(1)(a) of the 1999 Constitution that requires that the Governor must state on the instrument of pardon for its validity that he consulted with the Advisory Council on prerogative of mercy before the making thereof. He contended that there can hardly be any denial of the fact that Exhibit A attached to Motion No: SS/M.126/2017 constitutes an official act for which there is a presumption of regularity under Section 168(1) of the Evidence Act, 2011 formerly Section 150(1) Evidence Act, 2004. Counsel cited the case of NADABO vs. DUBAI (2011) 7 NWLR [PT. 1245] Page 155 at Page 178 paras D – G inter-alia thus: –
“By the above provision, whenever a judicial or official act has been done by a person authorized to exercise the function of that office in such a manner that it may be seen to have been substantially regular, it will be presumed that all the requirements for its regularity were met until otherwise proved in other words where such an act has been done, the law presumes that it was properly done. Whoever challenges or faults the regularity of the said action must had credible evidence to rebut the said presumption.”
See alsoC.B.N vs. BECKITI CONST. LTD (2011) 5 NWLR [PT. 1240] PAGE 203 at page 223 paras F F; OGU vs. EKWEREMADU (2006) 1 NWLR [PT. 961] page 255 at page 282 paras F – G.
The submission of the Respondents is that the Appellants have the bounden duty of rebutting the presumption of regularity in favour of Exhibit A by adducing credible evidence and that the feeble attempt made by them in this Appeal does not by any stretch imagination amount to such a rebuttal and Counsel urged this Court to so hold. He urged this Court to resolve this issue in favour of the Respondents.
ISSUE THREE;
In arguing this issue, Counsel said that its an issue that calls for a close scrutiny and subsequent interpretation of the instrument of pardon Exhibit A to determine whether it contemplates/includes the offences/crimes for which the Respondents were standing trial in case No. 55/33C/2009 before the trial Court. To do justice to this issue, Counsel submitted that it is imperative to look at the nature/character of the offences for which the Respondents are standing trial in Charge No. SS/33C/2009 and the words used in Exhibit A. As regards the nature/character of the offence for which the Respondents are standing trial in Charge No. SS/33C/2009, Counsel drew attention to the fact that all of them are offences embedded in the Penal Code law of Sokoto State and for all intents and purposes, offence against the Laws of Sokoto State. He said that although the parties are at consensus ad idem on this point, what seem to be the only point of divergence between the parties relates to: whether the instrument of pardon Exhibit A can be construed in such a manner as to cover the offences for which the Respondents are standing trial in the Court below.
To resolve this controversy,Counsel took time to reproduce the contents of Exhibit A hereunder viz: –
“CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA SOKOTO STATE OF NIGERIA
SOKOTO STATE LEGAL NOTICE …… 2016
In the exercise of the powers vested in me under Section 212 of the Constitution of the Federal Republic of Nigeria 1999, as amended and all other powers enabling me in that behalf, I, Aminu Waziri Tumbuwal, Governor of Sokoto State, do hereby grant an unconditional pardon to the persons listed in the schedule to this legal notice.
SCHEDULE:
NAME
NATURE OF PARDON
1. ALHAJI UMARU KWABO The indictment by the Report of Alhaji Muhammad Aminu Ahmad, 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.
2. A. A. MUHAMMADU MAIGARI DINGYADI
3. HON. HABIBU MODACHI
4. ALHAJI ISAH SADIQ ACIDA
5. ALHAJI MUHAMMADU TUKUR ALKALI
6. ALHAJI BELLO ISAH
DATED 29TH DAY OF SEPTEMBER, 2016
RT. HON. AMINU WAZIRI TAMBUWAL CFR, (MUTAWALLEN SOKOTO)
GOVERNOR, SOKOTO STATE.”
In his arguments on this issue, Counsel drew attention to what he referred to as the operative words, which are germane in construing Exhibit A reproduced above, which he said are” and six (6) of them are hereby granted unconditional 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.”
According to Counsel, the foregoing instrument shows clearly that there are two legs to it and can be ascertained by the use of the words: “and” between: “white paper and any criminal offence”. Counsel said that assuming for purposes of mere argument that the offences for which the Respondents are standing trial does not arise from the Report and white paper (But not conceded), he submitted that Exhibit A is couched in very wide terms as to cover the offences the accused persons are standing trial and which offences are undisputedly against the laws of Sokoto State.
Counsel further argued that the intention of the Governor of Sokoto State as expressed in Exhibit A is that apart from the Report and White paper, the Respondents should also benefit from reprieve for other offences committed against the laws of Sokoto State; that if the intention of the Governor was otherwise he would have stopped immediately after the word: White Paper as the addition of any criminal offence they might have been accused of against the law of Sokoto State”, will have been merely superfluous, which can never be the intention of the Governor.
In view of the foregoing, Counsel urged this Court to construe the word and appearing in Exhibit A between “white paper” and “any criminal offence” disjunctively thereby giving full effect/meaning to the intention of the Governor of Sokoto as expressed in Exhibit A. He said that this was the situation in the case of OGUNYADE vs. OSHUNKEYE (2007) 15 NWLR (PT. 1057) page 218 at page 245 paras E H inter-alia thus: –
I cannot fault the Court of Appeal. The Court is correct. In grammar or syntax, a sentence does not end with the word “and”. It is a conjunction playing the role in grammatical construction of connecting words or phrases expressing the idea that the later is to be added or taken along with the first.”
In sum, Counsel urged this Court to resolve this Appeal in favour of the Respondent.
RESOLUTION OF APPEAL
At the core of the very issues in this Appeal is the question of the proper interpretation of the powers of the Governor of a State under Section 212(1) (a) of the Constitution of Nigeria, 1999 as Amended. The Appellant had contended that it would be wrongful of the Governor to exercise its powers in granting a pardon where there had been no conviction recorded in respect of a criminal offence, because according to learned Appellants Counsel, a person who is yet to be convicted is presumed innocent until the contrary is proved. The learned Respondents Counsel on the other hand had put up a contrary argument as he contended that the power of pardon 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. This has been the focal point of the issues nominated for the determination of this Appeal.
In the instant Appeal, the Governor of Sokoto State, North-West Nigeria, the Rt. Hon. AMINU WAZIRI TAMBUWAL CFR, pursuant to an Instrument of Pardon dated the 29th day of September, 2016 had exercised his Constitutional powers under Section 212(1) (a) of the Constitution of Nigeria, 1999 in granting pardon to the Respondents herein at a time when they were undergoing trial and under circumstances in which they were yet to be convicted by the Court below.
Before the exercise of the said powers of pardon, the Respondents were standing trial before the Court below on a-One Hundred and Forty-Four (144) counts Amended Charge dated 11th day of January, 2010 for sundry offences including conspiracy, breach of trust, receiving stolen property, all punishable under the Penal Code applicable in Sokoto State of Nigeria. It would be recalled that at the Court below, trial had commenced and the Appellant’s Counsel were calling their witnesses, when the Respondents through their Counsel filed a motion on notice dated 4th day of April, 2017 praying the Court inter alia for an order discharging them from the charges in the case on the grounds that they had been granted unconditional pardon by the Governor of Sokoto State. The question that should perhaps, be asked at this stage is: what does the word Pardon denote under the Constitution of Nigeria, 1999 as Amended?
The Constitution of Nigeria, 1999 provides the power of Pardon under Section 175 for the President of the Federal Republic of Nigeria as follow;
1. The President may
A. grant any person concerned with or convicted of any
offence created by an Act of National Assembly a
pardon, either free or subject to lawful conditions;
B. grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;
C. substitute a less server form of punishment for any punishment imposed on that person for such an offence; or
D. remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence.
2. The powers of the President under Subsection (1) of this section shall be exercised by him after consultation with the Council of State.
3. The President, acting in accordance with the advice of the Council of State, may exercise his power under Subsection (1) of this section in relation to persons concerned with offences against the army, naval or air force law or convicted or sentenced by a Court-martial.
In the case of the Governor of a State, the Constitution provides under Section 212, the power of pardon for offences created by any Law of a State in the following words:
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;
B. grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;
C. substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or
D. remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state on account of such an offence.
2. The power of the Governor under Subsection (1) of this section 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.
This Court, in the case of FALAE vs. OBASANJO (NO. 2) (1999) LPELR-6585 (CA) per MUSDAPHER, JCA (as he then was) defined:
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 the
privileges forfeited on account of the offence. See VERNECO INC v. FIDELITY CAS C. AT NEW YORK 253 LA 721, 219 SO 2D 508, 511.”
Also in the case of UNITED STATES v. WILSON, 32 U. S. (7 Pet) 150 (1833) at 159-60, Pardon was defined as an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individuals, on whom, it is bestowed from the punishment the law inflicts for a crime he has committed. It is further defined as the private, though official act of the Executive.
Under ARTICLE II Section 2 the Constitution of the United States of America, the provision is titled:
Civilian Power over Military, Cabinet, Pardon Power, Appointments, ostensibly to demonstrate the political nature of the power, which grants the Chief Executive of State a political duty rather than a duty of law or justice to grant acts of clemency to deserving persons under a political entity. It is for this reason that the duty to pardon is neither grounded in nor limited by considerations of law or morality, as it is essentially one of politics and therefore never expected to be a subject of litigation in any Court of law, because of its discretionary nature.
In the case of BIDDEL v. PEROVICH, 274 U. S. A. 480, 486 (1972) the act of pardon is also said to be a part of the Constitutional scheme to be exercised for the public welfare that need not be justified or defended within the legal system so long as it is a matter of grace.
On the question of the proper interpretation of Section 212(1)(a) 1999 Constitution, there is absolutely no doubt that there are two limbs to the category of persons who can be beneficiaries or subject-matter of Pardon pursuant to the powers conferred on the Governor of a State under the scheme of things, which recognizes the following categories;
1. “any person concerned with or
2. convicted of any offence.”
The attitude of this Court in dealing with the issue of interpretation of Statutes is to strictly adhere to the first traditional rule of statutory construction, which dictates that the ordinary meanings of the words has to be adhered to in the absence of any special reasons to act otherwise. In this regard, see the words of TINDAL, C. J., in SUSSEX PEERAGE CASE (1844) CI. & FIN. 85; See also LAWAL vs. G.B. OLLIVANT (1972) 2 SC 124; ATUYEYE vs. ASHAMU (1987) 5 NWLR (PT. 49) 267 AT 353; ABIOYE vs. YAKUBU (1991) 5 NWLR (PT. 190) 130 AT 203-233-4.
In responding, therefore to learned Appellant Counsels resort to the use and application of the Ejusdem Generis canon of interpretation under circumstances, such as in this case in which the ordinary meanings of the words used in Section 212 (1) (a) of the 1999 Constitution of Nigeria (As amended) are plain and unambiguous, is to quickly draw attention to the fact that to be allowed to so do, is to allow violence to be done to the true meaning of Section 212(1)(a) of the Constitutionand in the process, obliterate the purpose and intention for which the makers of the law have deliberately included the word: or between the phrases: any person concerned with on the one hand and convicted of any offence” on the other hand.
In therefore, relying on the classical position here, it is important to note that the word; or in the provision, included by the law makers deliberately conveys a disjunctive meaning which accords with Section 18(3) of the Interpretation Act, CAP. 123 LFN, 2004, which provides that, the word: “or” in any enactment, be construed disjunctively and not as implying a similarity. In the case of ALHAJI ATIKU ABUBAKAR vs. YAR’ADUA (2009) ALL FWLR (PT. 457) 1 at 76 – 86 paragraphs G D., this Court per KATSINA-ALU, JCA (as he then was) held the view that;
The word or is defined in Blacks Law Dictionary, 6th Edition, in the following terms: A disjunctive participle used to express an alternative or to give a choice of one among two or more things.
Against the backdrop of this position, I simply find myself unable to disagree with the arguments of the Respondents Counsel that the expressions: any person concerned with or convicted of any offence used in Section 212 (1)(a) of the Constitution of Nigeria, 1999 as Amended are not distinct and separate clauses. I am therefore also in agreement with learned Respondents Counsel, that the authorities cited and relied upon by learned Appellants Counsel are clearly related to the second limb of Section 212 (1)(a) of the 1999 Constitution, dealing with situations where beneficiaries must have been convicted of any offence, before they are granted the pardon of the State Governor. What this means in essence therefore, is that learned Appellants Counsel Submissions due to reasons best known to Counsel have failed to address the first limb of the Constitutional provision dealing with the expression: any person concerned with.
It would equally be recalled that in arguing this issue, learned Appellants Counsel made a heavy weather arguing that the power of pardon cannot be exercised where a conviction had not been handed down, and by so doing stringed-up together a number of interesting arguments tending in the process to forget that the exercise of the power of pardon in the hands of the Chief Executive of a State is a political contrivance, which is rarely limited by legal considerations except where there are obvious and deliberate failures to adhere to clearly stated guidelines on the issues, which students and scholars of the Nigerian Constitution would readily admit are clearly none existent.
A careful and calm reading of both Sections 175 and 212 in this connection, which provides for the Constitutional powers of pardon, contain no such things as procedures, steps and requirements, thus giving the Nigerian President or State Governor respectively, more space to manoeuver in his exercise of his power to grant a pardon.
However, in the wake of an obvious dearth in judicial pronouncements on the subject in the political space called Nigeria, learned Respondents Counsel cited the case of EXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 – 6 at Page 300, where the United States Supreme Court had this to say on the subject;
“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.”
(Under lined, mine for emphasis)
The effect of a pardon, as expressed by JUSTICE FIELD in the said case in which Garland, an Attorney, had been pardoned by President Andrew Johnson for offences committed during the civil war, is that:
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 eyes of the law the offender is as innocent as if [sic] he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching. If granted after conviction it removes the penalties and disabilities and restores to him all his civil rights.
(Underline is mine for emphasis).
Apart from the fact that the above position puts it beyond further disputations about whether a conviction has to be a prerequisite for the proper exercise of the power of pardon or not, learned Respondents Counsel also raised an interesting argument on the issue where he resorted to the BLACKS LAW DICTIONARY, EIGHT EDITION in defining the word “pardon”, which he said accorded with/or is in harmony with Section 212(1)(a) of the 1999 Constitution. In his words: “Punishment” obviously pertains to/is relative to “conviction”, which is a condition precedent to punishment and that the expression: other legal consequences of a crime cannot by any stretch of imagination be said to have any nexus with “conviction”.
In this connection, I am in agreement with the learned Respondents Counsel that the other legal consequences of a crime as contemplated by the Constitutional provision could include criminal prosecution, which normally ensues after the commission of a crime more so when the act of pardon is in general, an act of forgiving a crime and nullifying punishment or other legal consequences of a crime such as legal prosecution as in the instant appeal.
The other hotly contested issue between the parties to this Appeal, of the three nominated issues, is the question, which has to do with whether the instrument of pardon in Exhibit A can be construed in such a manner as to cover the offences for which the Respondents are standing trial in the Court below. A careful construction of Exhibit A, will reveal in bold relief the fact that there are two legs to the question as well, and which are clearly set apart by the use of the word: “and” between; “white paper and any other criminal offence”. Assuming arguendo that the offences for which, the Respondents are standing trial do not arise from the Report and white paper, what is rather obvious, however, is that the Exhibit is couched in such a way that any other offences for which the accused persons are standing trial and which offences are against the laws of Sokoto State are also captured within its scope.
In the final analysis, this Appeal is moribund and it is accordingly dismissed. The Ruling of the High Court of Sokoto State sitting at Sokoto Coram: ABBAS BELLO, J. delivered on the 29th day of June, 2017 is hereby affirmed. The parties are to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in advance the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I am in absolute agreement with the entire reasoning therein and the conclusion that the appeal is bereft of substance.
The unmeritorious appeal is hereby dismissed. I subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A. (DISSENTING): My learned brother, Frederick O. Oho, JCA has so graphically and ably stated the facts of the case and that arose on appeal that I do not intend to repeat them in my contribution except to add as follows:
In the instant appeal, the Governor of Sokoto State of Nigeria, the Rt. Hon. Aminu Waziri Tambuwal CFR, Pursuant to an instrument of pardon dated the 29th day of September, 2016 has granted pardon to the respondents herein at a time when they were undergoing trial and in which they were yet to be convicted by the Court below. Thus, the core issue for determination in this appeal is the proper construction and or interpretation of the powers of the Governor of a State under Section 212 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The relevant provisions of Section 212 (1) 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.
(b) Grant to any person a respite, either for an indefinite or for a specified period of the execution of any punishment imposed on that person for such an offence;
(c) Substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or
(d) Remit the whole or any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state on account of such an offence.
(e) The power of the Governor under Subsection (1) of this Section 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.
Pardon is the act or an instance of officially nullifying punishment or other legal consequences of a crime.
Therefore, 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 pardon for State crimes which are also termed as executive pardon. The term pardon is first found in early French law 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.
According to Dicey, in the introduction to the study of the Law of the Constitution, 10th Edition 1959 a pardon is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. Prior to the seventeenth century, the English Monarchs power to pardon was absolute. His royal prerogative was as secret to him as the right of Englishmen were to the individual; so sacred in fact, that not even the king could dimish the royal tradition. Subsequently, prerogative of mercy came into effect in Nigeria through statute of general application and the concept remain an integral part of the Nigeria legal history.
I have earlier reproduced the provisions of Section 212 of the 1999, Constitution which is similar with Section 175 thereof as regard the power of the president to grant pardon.
The instrument of pardon giving rise to this appeal is Exhibit A annexed to the motion on a notice filed on 6/4/2017 at page 90 of the record of appeal which read as follows:
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA SOKOTO STATE OF NIGERIA
SOKOTO STATE LEGAL NOTICE 2016.
In the exercise of the powers vested in me under Section 212 of the Constitution of the Federal Republic of Nigeria 1999, as amended and all other powers enabling me in that behalf I, Aminu Waziri Tambuwal, Governor Sokoto State, do hereby grant an unconditional pardon to the persons listed in the schedule to this legal notice.
SCHEDULE
Name
i. Alhaji Umaru Kwabo A. A.
ii. Alhaji Habibu Halilu Modachi Ahmads
iii. Hon. Muhammadu Maigari
iv. Alhaji Isah Sadiq Acida
v. Alhaji Muhammadu Tukur Alkali
vi. Alhaji Bello Isah
NATURE OF PARDON
The indictment by the Report of Alhaji Muhammad Aminu Commission of Inquiry and the Government White paper dated 28th October, 2009 and six (6) of them are concerned with arising from the report and white paper and criminal offence they might have been accused of against the law of Sokoto State.
Dated 29th day of September, 2016.
Sign
RT. HON. AMINU WAZIRI TAMBUWAL CFR
(MUTAWALLEN SOKOTO)
GOVERNOR SOKOTO STATE.”
Learned appellants counsel submitted that in the light of the applicable Section 212 (1) of the 1999 Constitution, a person who has not been tried and convicted by a competent Court for an offence cannot be pardoned. He referred to SOLOLA V. STATE (2005) 2 NWLR (Prt. 937) 460 at 488 489 and OKONGWU V. STATE (1986) 5 NWLR (Prt. 44) 741 at 750.
Still in argument, learned counsel submitted that the nature of the pardon as contained in Exhibit A is ambiguous and is not wide enough to cover any criminal offences against the laws of Sokoto State.
Learned counsel for the respondents on his part referred to Article II, Section 2 of the United States
Constitution as well as the case of EXPARTE A. H. GARLAND (1865) U.S. SUPREME COURT REPORTS in contending that the power of pardon extends to every offence known to law which 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 pertinent to stress here that prerogative of mercy is clearly distinguishable with other prerogatives such as amnesty, condonation and nolle Prosequi. Although they are all legal apparatus used at one point or the other in criminal matters and exercised by the executive arm of government, they are not the same. Amnesty is an act of the sovereign power granting oblivion, or a general pardon, for a past offence, as to the subject concerned in an insurrection. Thus, it is an official statement allowing people who have been put in prison for crimes against the state to go free. See ADEOLA V. STATE (2017) LPELR 42327 (CA) Condonation is the voluntary overlooking and implied forgiveness by treating offender as if the offence had not been committed.
See NIGERIAN ARMY V.AMINU KANO (2010) LPELR 2013 (SC). Nolle proseque has the effect of discontinuance or taking over and continuing a criminal proceeding. In AUDU V. A.G. FEDERATION & ANOR (2012) LPELR 15527 (SC) Per OGUNBIYI JSC at pages 32 33 paras F. B. said:
On the concept of nolle prosequi, it is an exercise of power by the Attorney General of the Federation or State and which can be exercised at any stage of a criminal proceeding. Once the power is invoked it will not be subject to question either by any person or even the Court. As at the date of granting the application by the trial Court therefore, the consequential effect of filing of nolle prosequi by both Attorney Generals of the Kogi State and the Federation had automatically abated the criminal proceedings.
Prerogative of mercy on the other hand has the effect of granting to a convict a respite or remission of punishment, pardoning, forgiving or conditionally or unconditionally washing clean a sentenced criminal.
According to Glenn P. hastedt, an American professor pardon may be granted before or after conviction for the crime depending on the laws of the jurisdiction.
Amalgamating the above view alongside the standing practice in the United States of America as evidenced in several cases including that of President Richard Nixon, one can safely conclude that an executive pardon may be granted during criminal proceedings and not necessarily after conviction. However, the Supreme Court in Nigeria while considering the power of the president to grant pardon under Section 175 (1) of the 1999 Constitution which is similar in all respect with Section 212 of the said Constitution in the case of SOLOLA V.STATE (2005) 5 SC (Prt 1) 143 Per, Edozie, JSC at page 147 paras 20 30 said:
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 Section 175 or Section 212 of the Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person.
In the same vein, such person cannot be executed before his appeal is disposed of. It is hoped that the prison authorities will be guided by this advise.
On his part, Belgore, JSC (as he then was) at page 47 paras 36 45 said: –
The three accused persons convicted and whose appeal was dismissed by the Court of Appeal were normally expected to be all before this Court on Appeal. But that was not to be as we are told the third accused was pardoned. We heard this only from the Solicitor General of Ogun State speaking from the Bar. The third accused was the arrow-head of the conspiracy leading to the murder of the victim and I am disturbed at this development. The principal accused who led the conspiracy and supervised the murder of the poor infant hunchback has been let loose. The murder, no doubt was a ritual one. The rules as to grant of prerogative of mercy must be re-examined.
In the light of all that I have been saying, the law must be set in motion for it to arrive at its terminus. 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 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 corollary to the above, the instrument of pardon in the instant case Exhibit A must be precise and tide to a particular offence or offences and can never be at large. I dare say that the said instrument of pardon 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 the final result and for all the reasons that I have given above, this appeal succeeds and it is hereby allowed. The ruling of the trial Court delivered on 29/06/2017 discharging the respondents is accordingly set aside. In its place, the respondents are to continue with their trial before another judge of the Sokoto State High Court other than Hon. Justice Bello Abbas.
Appearances:
CHILE OKOROMA ESQ.For Appellant(s)
SAMUEL ATUNG ESQ.For Respondent(s)
