YENGE v. A.G OF THE FEDERATION AND MINISTER FOR JUSTICE (2022)

YENGE v. A.G OF THE FEDERATION AND MINISTER FOR JUSTICE

(2022)LCN/16641(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 06, 2022

CA/A/883/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

CHIEF SAATSAHA THADDEUS YENGE APPELANT(S)

And

ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER FOR JUSTICE RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE A CLAIM OR MATTER IS NOT CONTESTED

Ordinarily, in our practice and procedure, when a claim or matter is not contested, the repercussion is that the defendant or the respondent has conceded to the claim or the case. This position however, does not hold sway where the reliefs are declarative in nature. A declaratory relief by its signification is a relief by which the claimant prays the Court to exercise its discretionary jurisdiction to pronounce or in familiar terms to declare or pronounce on an existing state of affairs in law in the claimant’s favour as may be extracted from the pleadings of the claimant. See the case of Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538. It is the law that declaratory reliefs are not granted as a matter of course or on a platter of gold. They are only granted when there is credible evidence in support of the declaratory reliefs. See Chukwumah v. SPDC Ltd (1993) LPELR – 864 (SC) and Ladoja v. INEC (2007) LPELR – 1738 (SC). It is the law that a declaratory relief cannot be granted in the absence of evidence or where the evidence led is unsatisfactory. The reliefs are only granted on the strength of the credible evidence of the claimant. The fact that the respondent is not in Court to contest the claim does not authorize the claimant the authentic right to be issued with the declaration sought. PER ADAH, J.C.A.

THE POSITION OF LAW ON THE FEDERAL AND LEGISLATIVE POWERS

In Nigeria, we have a Federation and the legislative powers are issued by Section 4 of the 1999 Constitution. For ease of reference, Section 4(1), (2), (3) & (4) reads:
“4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter include in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusive of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that it to say –
(a) any matter in the Concurrent Legislative List set out in the first column of part II of the Second Schedule to this constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, in suit FCT/CV/167/16 delivered on the 6th day July, 2017; Coram: A.S. Umar, J., (as he then was).

The appellant as plaintiff instituted this action at the trial Court and claimed against the Respondent as Defendant the sole relief as per the Originating Summons, thus:
A Declaration that the Administration Criminal Justice Act, 2015 is applicable all over the Nigerian Federation in all Courts having Criminal jurisdiction save the Court Martial.

In opposition, the Defendant did not file anything to challenge the claims of the plaintiff, but rather filed a Notice of Preliminary Objection on the 21st day March, 2017 challenging the jurisdiction of the trial Court to hear and determine the Applicant’s suit.

The trial Court after considering the Preliminary Objection of the Defendant, discountenanced grounds B and C and same was deemed abandoned and dismissed. Ground A was meritorious and granted by the Court holding that the plaintiff had the locus standi to bring this action. However, the Court proceeded to the Originating Summons and in a considered Judgment dismissed same for lacking in merit.

Dissatisfied with the said decision, the appellant appealed to this Court vide a Notice of Appeal filed on the 27th September, 2017. The Record of Appeal was transmitted to this Court on 21st December, 2017.

Learned counsel for the appellant filed his Appellant’s Brief of Argument on the 12th January, 2018. The Respondent did not file any brief in respect of this appeal.

Learned counsel for the appellant formulated a lone issue for the determination of this appeal, thus:
Whether the lower Court was right by dismissing the Appellant’s Originating Summons in its entirety and refusing to grant the consequential relief sought therein regard being had to the sole question submitted for determination by the Appellant and the unchallenged legal submissions in the Appellant’s written address. (Distilled from grounds 1, 2 & 3).

Learned counsel for the appellant submitted that the purpose of the ACJA, 2015 among others was to remove the inequalities among the Nigerian citizens in various states of the Federation regarding the procedural prosecution in respect of similar offences committed in Nigeria in different locations. It was based on this premise that Section 493 of the Act and the Criminal Procedure applicable in the Northern States including the applicable law in the Federal Capital Territory. The ACJA, 2015 is a Federal Law and prevails over any law of the State governing the same subject matter or which is inconsistent with the Act. Counsel relied on Section 4 (5) of the Constitution of the Federal Republic of Nigeria, 1999; Olaleye-Ote v. Babalola (2012) FWLR (Pt. 645) 328 AT 348 Paras. E-F, Att. Gen. Ondo State v. Att. Gen. Ekiti State (2001) FWLR (Pt. 79) 1431 AT 1481 Paras. F-G, Bronik Motors v. Wema Bank (1983) 1 SCNLR 296, Nyesom v. Peterside (2016) All FWLR (Pt. 824) 38 AT 85-86 H-A, Lakanmi v. The Attorney-General of the West (1971) 1 UILR 201, INEC v. Musa (2003) FWLR (Pt. 145) 729 AT 812 Paras. D-E, AG Abia State v. A.G Federation (2002) FWLR (Pt. 101) 1419 AT 1512 C-D, Ogun State v. Attorney General of the Federation (1982) 3 NCLR 166 AT 176, Savannah Bank (Nig.) Ltd v. Ajilo (2001) FWLR (Pt. 75) 513 AT 552 A-B, Adewunmi v. A-G Ekiti State (2002) FWLR (Pt. 92) 1835 AT 1875 A-G, Abioye v. Yakubu (2001) FWLR (Pt. 83) 2212 AT 2285 Para. G and PDP v. INEC (2001) FWLR (Pt. 31) 2755 AT 2788 Paras. C-D.

Learned counsel for the appellant further argued that the National Assembly cannot unilaterally confer powers on a state functionary in relation to Federal matters. Counsel relied on the cases of A-G Lagos State v. A-G Federation (2003) FWLR (Pt. 168) 909 AT 105, A-G Ogun State v. A-G Federation (1982) 13 NSCC 1. Counsel urged this Court to resolve the sole issue in favour of the appellant and allow the appeal.

Ordinarily, in our practice and procedure, when a claim or matter is not contested, the repercussion is that the defendant or the respondent has conceded to the claim or the case. This position however, does not hold sway where the reliefs are declarative in nature. A declaratory relief by its signification is a relief by which the claimant prays the Court to exercise its discretionary jurisdiction to pronounce or in familiar terms to declare or pronounce on an existing state of affairs in law in the claimant’s favour as may be extracted from the pleadings of the claimant. See the case of Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538. It is the law that declaratory reliefs are not granted as a matter of course or on a platter of gold. They are only granted when there is credible evidence in support of the declaratory reliefs. See Chukwumah v. SPDC Ltd (1993) LPELR – 864 (SC) and Ladoja v. INEC (2007) LPELR – 1738 (SC). It is the law that a declaratory relief cannot be granted in the absence of evidence or where the evidence led is unsatisfactory. The reliefs are only granted on the strength of the credible evidence of the claimant. The fact that the respondent is not in Court to contest the claim does not authorize the claimant the authentic right to be issued with the declaration sought.
In the instant case, the absence of the respondent and or lack of response from respondent notwithstanding, the claim of the appellant must be thoroughly scrutinized to see whether it is proven and deserving of being granted. See the case of Attorney General Cross River State v. Attorney General of the Federation & Anor (2012) 16 NWLR (Pt. 1327) 425, where the Supreme Court held:
“It is trite law that the purpose of a declaratory action is essential to seek an equitable relief in which the plaintiff prays the Court in the exercise of its discretionary jurisdiction to promote or declare an existing state of affairs in law in his favour as may be discernable from the averments in the statement of claim. In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in future and that the right is contested. What would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognize and if validly made, it is prepared to give legal consequences too. Adigun v. A.G. Oyo State (No. 1) (1987) 1 NWLR (Pt. 53) 678, Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) Pg. 176, Ekundayo v. Baruwa (1965) 2 All NLR 211, Nwokudu v. Okanu (2010) 3 NWLR (Pt. 1181) Pg. 362.”

In the instant case, the declaration sought at the trial Court is the declaration that the Administration of Criminal Justice Act, 2015 is applicable all over the Nigerian Federation in all Courts having criminal jurisdiction save the Court martial. The Administration of Criminal Justice Act is an Act of the National Assembly of Nigeria.

In Nigeria, we have a Federation and the legislative powers are issued by Section 4 of the 1999 Constitution. For ease of reference, Section 4(1), (2), (3) & (4) reads:
“4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter include in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusive of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that it to say –
(a) any matter in the Concurrent Legislative List set out in the first column of part II of the Second Schedule to this constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.

The law in focus in the instant case is the Administration of Criminal Justice Act No. 13, 2015, which was enacted by the National Assembly. By Section 2 of the Act, the Legislature specifically set the scope of the application of the law. The law is to apply as follows:
“2. (1) Without prejudice to Section 86 of this Act, the provisions of this Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja.
(2) The provision of this Act shall not apply to a Court Martial.”
Then Section 86 provides that:
“86. The provision of this Part and Parts 9 to 30 of this Act shall apply to all criminal trials and proceedings unless express provision is made in respect of any particular Court or form of trial or proceeding.”
It is necessary to state the obvious that Nigeria is no doubt a Federation with a Federal Constitution in which the Legislative powers of the Federal Government through the National Assembly and the legislative powers of the State Governments through the State Assemblies were clearly defined. These consist of the Exclusive Legislative List on which only the National Assembly can legislate; the Concurrent Legislative List which is shared between the National Legislative and the State Assemblies and the remaining which is called the residual list not included in the Exclusive or Concurrent List which only the State Assemblies can legislate on. It is therefore the function of the Court when any dispute arises on the competence of either of them to ensure that each legislative arm operates within its limit as provided by the Constitution. Furthermore, in order to determine the competence to legislate as in this case, the interpretation of the relevant provisions of the Constitution must be invoked. The Court under the Constitution has no power to make laws. It is therefore, out of tune with the mandate of this Court to be asked to extend the application of the law enacted by the National Assembly beyond the boundaries set for it by the Legislature in the said law. What is more, the National Assembly cannot legislate laws outside or beyond its constitutional mandate. Forcing or ordering the law of National Assembly to be made applicable to be stated in defiance of the Constitution will be unconstitutional. This is why the decision of the trial Court cannot in any form be faulted in this appeal. I believe that there is no merit in this appeal and I so hold. The appeal therefore, is hereby dismissed.

The judgment of the lower Court in Suit No: FCT/CV/167/16, delivered on the 6th day of July, 2017, is hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother, Stephen Jonah Adah JCA was made available to me in draft before now.

I agree with the reasoning therein as well as the conclusion reached and accordingly dismiss the appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The function of the Courts is jus dicere, not jus dare. The Court does not engage in judicial legislation and such is the doctrine of separation of powers that the Court cannot usurp the constitutional law making powers of the legislature.
I iterate that it remains hornbook law that while the Courts have the powers to interpret the law, it has no power to veer into the legislative arena or constitute itself a legislator. See SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 71-72 and BASINCO MOTORS LTD vs. WOERMANN-LINE (2009) LPELR (756) 1 at 25-26.
The legislature in Section 2 of the Administration of Criminal Justice Act, 2015, enacted that the Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja. Furthermore, the provisions of the Act shall not apply to a Court Martial. The essence of the declaratory relief sought by the Appellant is to have the Court declare that the Administration of Criminal Justice Act is applicable in all Courts having criminal jurisdiction all over the Nigerian Federation save the Court Martial.
Against the background of the provision of the aforesaid Section 2 of the Administration of Criminal Justice Act, 2015, a grant of the relief would mean extending the application of the Act beyond what was legislated. That will be judicial legislation, which is not for the Courts. The legislature has not enacted for the Administration of Criminal Justice Act to be applicable throughout Nigeria. Law making must be left in the hands of the legislature.

It is predicated on the foregoing and on the more elaborate reasoning articulated in the leading judgment of my learned brother, Stephen Jonah Adah, JCA, which I was privileged to read in draft, that I join in dismissing this appeal and on the same terms as set out in the leading judgment.