THE AKWA IBOM STATE HOUSE OF ASSEMBLY v. OBONG (ENGR.) FRANK OKON (2016)

THE AKWA IBOM STATE HOUSE OF ASSEMBLY v. OBONG (ENGR.) FRANK OKON

(2016)LCN/8139(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of January, 2016

CA/C/03/2013

RATIO

THE WORD INDICTMENT: THE DEFINITION OF THE WORD INDICTMENT

The word ‘indictment’ is defined in Black’s Law Dictionary, 9th Edition as:
1. The formal written accusation of a crime, made by a grand jury and presented to a Court for prosecution against the accused person.
2. The act or process of preparing or bringing forward such a formal written accusation.
The word has also received sustained judicial interpretation. In Amaechi v INEC (2008) 33 NSCQR (Pt 1) 332, (2008) 5 NWLR (PT 1080) 227, the Supreme Court; per M Mohammed, JSC (now CJN) the following explanation was given:
“By definition, the word ‘indictment’ simply means a formal accusation; the written accusation against someone who is to be tried by a Court of law.”
Evident from the definition of the word ‘indictment’ is the fact that an indictment does not involve conviction or punishment. An indictment formally accuses a person of a criminal offence. It is therefore no more than an allegation. The person accused is now handed over to the Courts for prosecution. per. ONYEKACHI AJA OTISI, J.C.A.

COURT: DUTY OF THE COURT: THE DUTY AND POWER OF THE COURT TO SAFEGUARD THE GUARANTEED RIGHT OF AN ACCUSED PERSON TO A FAIR TRIAL

Well-grounded in our Constitution is the principle that a person is deemed innocent until proven guilty; Section 36(5) of the 1999 Constitution, as amended. Opportunity must therefore be presented in the appropriate Constitutional setting, which is a Court of competent jurisdiction, for the accused person to answer to the charges against him.
He must be heard upon the indictment in his own defence. Constant judicial authorities have maintained the utmost importance of the sacrosanct duty of the Court to safeguard the guaranteed right of an accused person to a fair trial.
In Sofekun v Akinyemi (1950) ALL NLR 153, (1980) 5-7 S.C. 1, (1980) LPELR-3091 (SC), (1981) 1 NCLR 135 at 146, the Supreme Court, Per Fatayi Williams, CJN pronounced as follows: …it seems to me that once a person is accused of a criminal offence he must be tried in a “Court of law” where the complaint of his accusers can be ventilated in public and where he can be sure of getting a fair hearing…No other Tribunal, investigating panel or committee will do.
If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hands of the Magistrates and Judges…If the Commission is allowed to get away with it, judicial power will certainly be eroded…The jurisdiction and authority of the Courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pre whatsoever.”
Again, it was succinctly put by the Supreme Court, per Katsina-Alu, JSC (as he then was), in Action Congress v INEC (2007) 12 NWLR (PT 1048) 220 SC, (2007) 6 SC (PT 11) 212 this way: “The trial and conviction by a Court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power…An indictment are no more than an accusation.”
See also Effiom v Cross River State Independent Electoral Commission (2010) 14 NWLR (PT 1213) 106 SC, (2010) LPELR-1027 (SC).
?These authorities as well as the provisions of Section 128 (2) of the 1999 Constitution, as amended thus point irrefutably to the powers of the Appellant enabling it to set up an Ad-hoc Committee to conduct investigations into the affairs of the Ibom Science Park Project; as well as the powers of the Ad-hoc Committee to indict or accuse persons who their investigations reveal ought to be indicted. This is however where their powers and duties end. per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

THE AKWA IBOM STATE HOUSE OF ASSEMBLY Appellant(s)

AND

OBONG (ENGR.) FRANK OKON Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, sitting at Uyo presided over by Honourable Justice Joy I. Unwana, J, delivered on July 18, 2012 in which the indictment of the Respondent by the Appellant in the report of the Ad-Hoc Committee that investigated the Ibom Science Park was declared null and void and of no legal consequence whatsoever.

?The facts leading up to this appeal as discernable from the Record of Appeal are as follows:
?The Respondent was sometime between 2003 and 2007, a Special Adviser on Technical Matters to the former Executive Governor of Akwa Ibom State, Obong Victor Attah, whose duties included advising on the Ibom Science Park Project, initiated by that administration. The responsibility of the Respondent was mainly to certify actual work done and to generally advise on the technical aspects of the project. Relying on the provisions of the Section 128 (2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, on June 2, 2009, the Appellant set up an Ad – Hoc Committee to investigate the Ibom Science Park Project with

stated terms of reference which included to investigate the disbursement and administration of budgeted funds for the Ibom Science Park Project which was alleged to have been abandoned and ascertain if there had been any mismanagement of funds; page 22 of the Record of Appeal.

At the end of the exercise, the Committee presented a Report in which they found that there been corrupt practice, inefficiency and waste in the administration of the funds appropriated for the project. The Committee made recommendations, which included the following:
5) That SBT JUL Africa, Mr. Frank Okon and Dr. Linus Asuquo are indicted for abuse of offices and for misappropriation and misapplication of funds amounting to N2, 100,000,000.00 being monies released but not applied for purpose of the development of the Science Park Project. Mr. Frank Okon and Dr. Linus Asuquo being the certifying authorities for work done before monies are released.
6) That this House do direct the State Executive Council to take steps to recover the said amount of N2,100,000,000.00 from SBT JUL, the Development Manager, Mr. Frank Okon and Dr. Linus Asuquo.
See: pages 48 and 49 of the

Record of Appeal.

The Respondent consequently, by an Originating Summons filed on December 20, 2010, sought the determination of the following questions at the High Court of Justice, Uyo:
1. WHETHER the Akwa Ibom State House of Assembly under the 1999 Constitution and the powers conferred on it by Sections 4 (7), 128 (1) (2) and Sections 4 – 13 of the Legislative Houses (Powers & Privileges) Act, Laws of the Federation, 2004 and any other provisions of the 1999 Constitution has the powers to set up an Ad – Hoc Committee in particular or any other Administrative or Investigative body for the purpose and with the powers to indict persons invited to appear before it.
2. WHETHER the said Ad – Hoc Committee in particular and the Akwa Ibom State House of Assembly in general can make any recommendation or indictment bordering on a crime, to wit: misappropriation, misapplication of funds, against the Plaintiff.
3. WHETHER the purported indictment of the Plaintiff is of any consequence without a pronouncement of a Court of competent jurisdiction acting within the Powers vested by Section 6(6) of the Constitution, such being a usurpation of the

powers of the High Court of Akwa Ibom State.

Upon this premises, the Respondent claimed against Appellant the following reliefs:-
1. A DECLARATION that the powers conferred on the Akwa Ibom State House of Assembly under Sections 4 (7), 128 (1) (2) and Sections 4 ? 13 of the Legislative Houses (Powers & Privileges) Act, Laws of the Federation, 2004 and any other provisions of the 1999 Constitution does not extend to or include the setting up of an Ad – Hoc Committee for the purpose and with powers to indict persons invited to appear before it.
2. A DECLARATION that the purported indictment of the Plaintiff by the 3rd Defendant (the Appellant herein) is null, void and of no effect as it amounts to a usurpation of the powers of the Courts as provided under Section 6 (6) of the 1999 Constitution and therefore of no legal effect.
3. A DECLARATION that the purported indictment of the Plaintiff by the 3rd Defendant (the Appellant herein) even(sic) it was legal is of no consequence unless pronounced upon by a Court of competent jurisdiction.
4. AND for such further or other orders or reliefs as the Honourable Court may deem fit and

just to make or grant in the circumstance.
See pages2-5 of the Record of Appeal.

The learned trial Judge, at the conclusion of the matter, held inter alia, at page 131 of the Record of Appeal:
?In the final analysis, this case succeeds in part and I accordingly declare as follows:
(1) It is hereby declared that the purported indictment of the plaintiff by the 3rd defendant in the report of the ad-hoc committee that investigated the Ibom Science Park is null and void and of no legal consequence whatsoever.

Aggrieved by the decision of the learned trial Judge, the Appellant invoked the appellate jurisdiction of this Court by Notice of Appeal filed on August 10, 2012 upon two grounds of appeal, and seeking the following reliefs:
i. An Order setting aside the decision of the trial Court complained against.
ii. An Order allowing the appeal and holding that:
a. The Committee had the power to indict the Respondent and recommend him to Government for appropriate actions.
b. The indictment had the legal consequence and effect to the extent that if accepted by Government, it would form a legitimate legal and

constitutional basis for further action including the issuance of a White Paper.

The parties exchanged Briefs of Argument, which were respectively adopted on 4/11/2015 by David Jonathan, Esq., for the Appellant; and by Ekanem Ekanem, Esq., of Counsel for the Respondent. Out of the two grounds of appeal, learned Counsel for the Appellant, distilled two issues for determination, as follows:
(1) Whether the Appellant is not entitled to indict a person who is a subject of its investigations pursuant to the constitutional powers vested in it by Section 128 (2) (b) of the Constitution to expose corruption, inefficiency or waste and whether such indictment is an encroachment on the judicial powers vested in the Courts. (Ground 1).
(2) Whether it was not wrong in law for the trial Court to declare an act done pursuant to powers expressly vested by the Constitution to be null and void and of no legal consequence whatsoever. (Ground 2).

For the Respondent, the sole issue distilled for determination is as follows:
Whether an Ad – Hoc Committee in particular or any other Administrative or investigative body for that matter, has the power to indict

and pronounce punishment on a criminal issue, which is purely within the exclusive jurisdiction of a Court of competent jurisdiction.

In my considered view, having regard to the facts of the case and the submissions of learned Counsel for the parties, the three issues formulated for determination by both parties address the crux of this appeal. I shall therefore adopt for determination of this appeal the two issues formulated by the Appellant and the sole issue distilled by the Respondent.

In submitting that the Appellant had Constitutional powers to set up the Committee to investigate the Ibom Science Park as it had done, learned Counsel relied on the provisions of Section 128 of 1999 Constitution, as amended, which provides thus:
(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into
(a) any matter or thing with respect to which it has power to make laws; and
(b) the conduct of affairs of any persons, authority, Ministry or government

department charged or intended to be charged with the duty of or responsibility for –
(i) executing or administering laws enacted by that House of Assembly and
(ii) disbursing or administering moneys appropriated or to be appropriated by such House.
2. The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to –
(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

After hearing the parties on the Originating Summons submitted by the Respondent, the learned trial Judge found, inter alia, as follows at pages 129- 130 of the Record of Appeal:
?While it can come to the conclusion as it did, that the plaintiff has questions to answer, it cannot proceed to find the plaintiff guilty and direct specific sums of (sic) be recovered. Once the Legislature exposes corruption,

inefficiency or waste, it must refer the matter to the appropriate body to determine the extent and involvement of persons affected.
While it was within the powers of the committee to come to the conclusion that the plaintiff has questions to answer, it had no power to indict the plaintiff for abuse of office and for misappropriation of the sum of N2,100,000,000.00 as this implied a determination of the guilt of the plaintiff which the 3rd defendant is not empowered to do.
Section 128 of the Constitution clearly sets the limit of the investigative powers of the Legislature.
Mr. Jonathan submitted that the use of the word “indicted” simply means allegation and no more. He relied on the case of BUHARI V. INEC SUPRA. Is this correct? If indeed it meant mere allegation, why did the committee direct the recovery of the sum from the plaintiff? That could only have arisen because the committee had made conclusions on the guilt of the plaintiff. This was ultra vires its powers as provided by Section 128(2)(b) of the 1999 Constitution.”

Mr. Jonathan of Counsel for the Appellant submitted that the word in contention is the use of the word ‘indict’ by

the Committee in its recommendations. It was his position that an ‘indictment’ means no more than a written charge or formal accusation which must be proved beyond reasonable doubt. He placed reliance on the definition of the word in Black’s Law Dictionary, 7th Edition, and a number of judicial authorities including: Okotie Eboh v Manager (2004) 18 NWLR (PT 905) 242 at 287-288; Umanah v Attah (2004) 7 NWLR (Pt 871) 63. It was submitted that the powers of a judicial panel differ from that of an investigating panel. While a panel of enquiry investigates, makes findings of fact, indicts and makes recommendations; a judicial trial would convict and sentence a person found guilty of a criminal offence.
He further submitted that while a conviction would require no further action, an indictment by an investigating panel does not take effect until it is accepted by Government through the issuance of a White Paper.

?It was posited that the Ad-hoc Committee acted within its powers and did not usurp the powers of the judiciary. In that event, the acts done by the Appellant in furtherance of its Constitutional powers could not be declared to be null and void and

of no effect. The Court was urged to allow the appeal.

Mr. Ekanem for the Respondent in his submissions referred to the provisions of Section 4(7) of the 1999 Constitution, as amended as well as Sections 4 – 13 of the Legislative Houses (Privileges and Powers) Act, Laws of the Federation, 1958 to submit that there was no provision that empowered the Appellant to set up an investigative panel with powers to impose penalty or punishment as the Appellant had done with regard to the Respondent. He submitted that the Appellant did not have powers to indict anyone and require the person to refund any amount allegedly misappropriated. It was also contended that the provisions of Section 128 of the 1999 Constitution did not empower the Appellant to make the pronouncements made in paragraphs 5 and 6 of the Committee’s Report, already reproduced above. That the Appellant in carrying out its functions must exercise such powers within its constitutional limits. Reliance was placed on AG, Abia State v AG, Federation (2006) 16 NWLR (PT 1005) 265, inter alia. The Court was urged to dismiss this appeal.

?The recommendations of the Committee in issue in

this appeal were:
5) That SBT JUL Africa, Mr. Frank Okon and Dr. Linus Asuquo are indicted for abuse of offices and for misappropriation and misapplication of funds amounting to N2, 100,000,000.00 being monies released but not applied for purpose of the development of the Science Park Project. Mr. Frank Okon and Dr. Linus Asuquo being the certifying authorities for work done before monies are released.
6) That this House do direct the State Executive Council to take steps to recover the said amount of N2,100,000,000.00 from SBT JUL, the Development Manager, Mr. Frank Okon and Dr. Linus Asuquo.

the word ‘indictment’ simply means a formal accusation; the written accusation against someone who is to be tried by a Court of law.”
Evident from the definition of the word ‘indictment’ is the fact that an indictment does not involve conviction or punishment. An indictment formally accuses a person of a criminal offence. It is therefore no more than an allegation. The person accused is now handed over to the Courts for prosecution.

Williams, CJN pronounced as follows:
?…it seems to me that once a person is accused of a criminal offence he must be tried in a “Court of law” where the complaint of his accusers can be ventilated in public and where he can be sure of getting a fair hearing…No other Tribunal, investigating panel or committee will do.
If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hands of the Magistrates and Judges…If the Commission is allowed to get away with it, judicial power will certainly be eroded…The jurisdiction and authority of the Courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pre whatsoever.”
Again, it was succinctly put by the Supreme Court, per Katsina-Alu, JSC (as he then was), in Action Congress v INEC (2007) 12 NWLR (PT 1048) 220 SC, (2007) 6 SC (PT 11) 212 this way:
“The trial and conviction by a Court is the only constitutionally permitted way to prove

guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power…An indictment are no more than an accusation.”
See also Effiom v Cross River State Independent Electoral Commission (2010) 14 NWLR (PT 1213) 106 SC, (2010) LPELR-1027 (SC).
?These authorities as well as the provisions of Section 128 (2) of the 1999 Constitution, as amended thus point irrefutably to the powers of the Appellant enabling it to set up an Ad-hoc Committee to conduct investigations into the affairs of the Ibom Science Park Project; as well as the powers of the Ad-hoc Committee to indict or accuse persons who their investigations reveal ought to be indicted. This is

however where their powers and duties end. The Appellant therefore had the power to indict the Respondent upon the exposure made by its investigative panel.
Issues No 1 and 2 formulated by the Appellant are accordingly resolved in their favour.

Having indicted certain persons, including the Respondent, the next step to be taken was to recommend their prosecution. The Appellant cannot, without taking the step of handing the accused persons over for prosecution, proceed to direct the State Executive Council to take steps to recover the said amount of N2,100,000,000.00 simply because this direction predicates a conviction. An accused person must be publicly prosecuted, given opportunity to be heard in his own defence, which includes the cross-examination of his accusers, and then his subsequent conviction before the punishment or sentence can be pronounced. The punishment cannot follow the accusation, without a formal prosecution and opportunity presented for defence. The Respondent as accused by the indictment must be publicly prosecuted, given opportunity to cross examine his accusers and offer his defence all before a Court of law of competent

jurisdiction; Section 36(1) of the 1999 Constitution, as amended. Upon his conviction of the crime by the Court, he would be duly sentenced. It is at that point that an order for the refund of any proven misappropriated funds can be made.

One of the Terms of Reference of the Ad-hoc Committee at page 22 of the Record of Appeal clearly stated that it was:
To recommend for trial by the relevant Anti-graft Agencies anybody found guilty in the mismanagement of funds

The subsequent direction made by the Appellant that the State Executive Council takes steps to recover the said amount of N2,100,000,000.00 was made without the necessary vires, and therefore a null direction. In this circumstance, the sole issue raised by the Respondent is resolved in his favour against the Appellant.

?Upon the resolution of these issues, this appeal succeeds in part. The declaration made by Hon Justice Joy I. Unwana, J., delivered on July 18, 2012 in which the indictment of the Respondent by the Appellant in the report of the Ad-hoc Committee that investigated the Ibom Science Park was declared to be null and void and of no legal consequence whatsoever is hereby

set aside.
It is further ordered that the direction of the Appellant to the effect that the Akwa Ibom State Executive Council takes steps to recover the amount of N2,100,000,000.00 from the Respondent, without the formal prosecution of the Respondent upon the indictment and any consequent conviction, was made without necessary vires, and therefore a null direction.

It is also ordered that parties shall bear their costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I have read in draft the Judgment just delivered by my Learned brother Onyekachi Aja Otisi, JCA.

I agree with the reasoning and conclusion arrived at in allowing this appeal in part. I therefore adopt same as mine in allowing the appeal in part. I also abide by the consequential Orders made.
Appeal allowed in part.

Appearances

David Jonathan, Esq.For Appellant

AND

Ekanem Ekanem, Esq.For Respondent