The Federal Republic of Nigeria & Anor v. Lord Chief Udensi Ifegwu

: The respondent was one of six accused persons arraigned and tried before the Failed Banks Tribunal, Lagos. The charge contained ten counts although he was involved in only counts 1 and 10. On 19 March, 1996, the Tribunal presided over by Ope-Agbe, J. as Chairman convicted the respondent on the two counts and sentenced him to 5 years in prison in respect of count 1 and N100,000.00 fine or 3 years in prison in respect of count 10. He appealed to the Special Appeal Tribunal [Coram: Hon. Justice D. O. Coker (Chairman) and Chief (Mrs.) P. C Ajayi-Obe, SAN (member)]. On 29 May, 1997, the Special Appeal Tribunal allowed the appeal on sentence by substituting for each of counts 1 and 10, N100,000.00 fine or 2 years in prison. Thus the respondent came to the end of the road as far as the appellate process was concerned since under section 5 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 which gave him a right of appeal to the Special Appeal Tribunal, it was provided thus:
“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) decree, 1984, as amended, in accordance with the provisions of that Decree.
(2) The decision of the Special Appeal Tribunal shall be final and, where there is no appeal, the decision of the Tribunal shall be final.”
It was obvious that the right of appeal was no longer available to the respondent. But he did not give up nor did his counsel, Professor Adesanya, SAN. The learned Senior Advocate filed an originating summons in the Federal High Court, Lagos in June, 1999.
He came under Fundamental Rights Protection. The sum total of the complaint was, that the Failed Banks Tribunal and the Special Appeal Tribunal which heard the case acted in breach of the fundamental rights of the respondent guaranteed under section 33 of the 1979 Constitution then applicable, being without jurisdiction to try, convict and sentence him in respect of the counts laid against him. Put in another way, that he could not be made to suffer criminal penalties for acts which did not constitute any offence at the time they were done. The originating summons sought three reliefs upon the determination of two questions.

P.1

The three reliefs were:
“(1) A declaration that the Failed Banks Tribunal, Zone II, Lagos as well as the Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the plaintiff under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 of count 1 in the charge No. FBFMT/LZII/IC/95 and appeal No.SAT/FBTI273/96 in view of section 33(8) of the Constitution of the Federal Republic of Nigeria, 1979 as amended being the law in force at the relevant date.
(2) A declaration that the Failed Banks Tribunal, Zone II, Lagos as well as the Special Appeals Tribunal lacked the jurisdiction to try, convict and sentence the plaintiff under the Banks and Other Financial Institutions Decree, 1991 of count 10 in the charge No. FBFMT/LZII/IC/95 and appeal No. SAT/FBTI273/96 in view of section 33(8) of the Constitution of the Federal Republic of Nigeria, 1976 as amended) being the law in force at the relevant date.
(3) An order setting aside the conviction and sentence.”
It is relevant to also reproduce the two questions for determination because they were the very questions referred by the Federal High Court presided over by Odunowo, J. under section 295(2) of the 1999 Constitution to the Court of Appeal. They read as follows:
“(1) Whether the Failed Banks Tribunal, as well as the Special Appeal Tribunal had the jurisdiction to try, convict and sentence the plaintiff on count 1 in the charge No. FBFMT/LZII/IC/95 under the Failed Banks (Recovery of Debts) and Financial Malpractice in Bank Decree, 1994 in view of section 33(8) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.
(2) Whether the Failed Banks Tribunal as well as the Special Appeal Tribunal had the jurisdiction to try, convict and sentence the plaintiff on count 10 in charge no. FBFMT/LZII/IC/95 under the Banks and Other Financial Institutions Decree, 1991 in view of section 33(8) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.”

P.2

The respondent was a director of Alpha Merchant Bank Plc. from 2 June, 1988 till sometime in 1993. He claimed that he was made a director “by virtue of the investments made by my associates and me in the equity” of the bank. The said bank’s licence was revoked by the Central Bank of Nigeria by a publication in the Official Gazette of the Federal Republic of Nigeria, No.9, Vol. 21 of 8 September, 1994. The bank had been an authorised dealer in foreign exchange. The respondent maintained accounts with the bank through his companies known as Dubic Industries Ltd., D. U. Chemicals Ltd. and African Pulp and Paper Mills Ltd. He was alleged to have “over-utilised foreign exchange, for which he did not provide equivalent naira cover for the amount.” It was for this reason that two counts on which he was convicted but of the ten filed before the Failed Banks Tribunal were laid against him as follows:
“Count 1:
That you, Lord Chief Udensi Ifegwu (now at large), Jimi Adebisi Lawal (now at large), Tony Nnachetta, Jeff Fayomi while being Directors and or Managers of Alpha Merchant Bank Plc. (now in liquidation) at Lagos, between 30th June, 1988 and 1st October, 1993 conspired to commit a felony, to wit fraudulently granting credit facilities to Dubie Industries Limited without lawful authority in contravention of rules and regulations of the said Alpha Merchant Bank Plc. And the regulatory authorities (CBN/NDIC) and thereby committed an offence punishable under section 516 of the Criminal Code Act, Cap.77, Laws of the Federation, 1990 to be read with section 3(1)(b)(c) and (d) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 as amended.

P.3

Count 10:
That you, Lord Chief Udensi Ifegwu (now at large), between 30th June, 1988 and 1st October, 1993 at Lagos while being a Director of Alpha Merchant Bank Plc. (now in liquidation) and also a Director of Dubic Industries Limited was connected with the granting of credit facilities totaling US$2,962,062.89 (Two million, nine hundred and sixty-two thousand Dollars, eighty-nine cents) (sic) now equivalent of N242,889,156.98 (Two hundred and forty-two million, eight hundred and eighty-nine thousand, one hundred and fifty-six naira, eighty-nine kobo only) to Dubic Industries Limited without declaring your personal interest in the said facility to the then Board of Directors as required by section 18(3) of the Banks and Other Financial Institutions Decree, 1991 and thereby committed an offence punishable under section 18(9) of the same Decree.”
As already indicated, the two questions set down by the respondent in the originating summons were referred to the Court of Appeal, Lagos Division. The reference was made upon the request of the respondent as indicated in a motion on notice. The enrolment of order in this regard shows that the motion on notice was filed on 12 July, 1999 and was heard on 27 October, 1999. It was moved by Professor Adesanya, SAN on behalf of the respondent as plaintiff/applicant. The appellants as defendants were absent and unrepresented. Whether the reference was properly made without giving the appellants a hearing has been made an issue in this appeal just as it was raised in the court below.
The court below constituted a full court and proceeded to consider the matter on the basis of four issues raised by the plaintiff and three issues by the defendants in their respective briefs of argument. It will be recalled that the reference made to the Court of Appeal put two specific questions for the decision of the court.

P.4

The issues raised by the parties were intended to assist the court to reach a decision on the two questions referred to it. On the 25 June, 2001 the court below rendered its decision unanimously but the decision did not as much contain answers specifically to the two questions, except by implication that they were given in the negative. The leading judgment of Aderemi, JCA, with which the other four learned Justices concurred, concluded as follows:
“In the final result and for all I have said above, it is my judgment that the plaintiff’s suit is meritorious. If the matter were on an appeal before us I would have, for the reasons that there is no crime styled as ‘fraudulently granting credit facilities’ and the conviction for that crime being in violation of the provisions of section 33(12) of the 1979 Constitution and the law on which the charge was laid was given retrospective application, allowed the appeal, set aside the convictions and sentences. But, since the matter came to us, by reference (case stated), I return the following answers:
(1) There is no crime known to Nigerian Law as ‘fraudulently granting credit facilities’.
(2) Conviction on a crime which is unknown to law is unconstitutional and must not be allowed to stand.
(3) It is unconstitutional, indeed it is a violation of all known principles of law to convict the plaintiff of conspiracy to commit a felony in the circumstance of this case where the facts alleged amounting to felony occurred in 1991 while the Failed Banks Decree under which the felony was charged commenced on the 9th of November, 1994.
(4) It is improper, in law to convict the plaintiff for (sic) counts 1 and 10 under the BOFID as a whole without drawing any distinction, when the facts on which the crime was predicated occurred in part before the commencement of the BOFID and partly after the commencement of the BOFID.”

P.5

The defendants/appellants in their appeal against the judgment have raised six issues for determination. With profound respect to the learned Senior Advocate for them, Mr. Fagbemi, who I note for his industry, I think most-of the issues were raised largely upon some misconception. In fairness to him, he may have been misled to some extent to take all manner of issues with the judgment essentially because of the approach adopted by the court below in attending to the reference made to it. The issues read as follows:
“1) Were the learned Justices of the Court of Appeal right in not striking out this case stated when ex facie the trial Federal High Court lacked jurisdiction to make the reference? – grounds 1,3 and 7.
2) Whether the Court of Appeal was right in entertaining the reference when the condition precedent to the exercise of jurisdiction to refer by way of case stated by the Federal High Court had to the finding of the Court of Appeal not been fully established? (sic) – ground 9.
3) Was the Court of Appeal right in holding that the provisions of section 33(8) and (12) of the 1979 Constitution took precedence over the Failed Bank and BOFID Decrees in the face of the Supreme Court restatement of the hierarchy of our laws during a military inter regnum? – ground 2.
4) Was the Court of Appeal right in not dismissing the case stated when ex facie it is statute barred and also caught by issue estoppel? – grounds 4 and 6.
5) Was the Court of Appeal right in its application of the Supreme Court decision in 7-Up Bottling Co. Ltd. Abiola & Sons Ltd. (1995) 3 NWLR (Pt. 383) 257 to the facts of this case and in its justification of the hearing ex parte of the motion on notice praying for the reference? – ground 5.
6) Whether the misuse of the word ‘fraudulently’ in the description of the offence for which the respondent was convicted was material enough to vitiate the conviction when the respondent was not deceived or misled by the description? – ground 6.”

P.6

Issues 1, 2, 4 and 5 were argued together by the appellants in their brief of argument. The argument on them covers, naturally I would say, a major part of the brief.
Issues 1, 4 and 5 
I intend to consider and resolve issues 1,4 and 5 together before I deal with issues 2, 6 and 3 in that order. Part of the submission of Mr. Fagbemi, SAN, is that the Tribunal had exclusive jurisdiction to hear the charge against the respondent in respect of the two counts which were endorsed in the originating summons filed in the Federal High Court. It was on the basis of that endorsement that a motion on notice seeking that a reference be made to the Court of Appeal was filed. The argument goes that the nature of a claim has to be examined to ascertain whether a matter comes within the jurisdiction which a statute confers on a court. The learned Senior Advocate thereafter further submitted in the terms I shall paraphrase but closely using his words (a) that the Federal High Court does not have the jurisdiction to adjudicate over the matters stated in the originating summons and therefore has no power to hear the motion seeking to make a reference to the Court of Appeal; (b) that the Court of Appeal consequently lacks the competence to make any determination of the questions so referred to it; (c) that section 1(5) of the Failed Banks Decree No. 18 of 1994 excluded the exercise by the High Court of “the usual ‘supervisory jurisdiction’ or ‘power of judicial review’ irrespective of the provisions of any unsuspended section of the 1979 Constitution” (d) that section 5(2) of Decree No. 18 of 1994 made the decision of the Special Appeal Tribunal final; (c) that as the jurisdiction of the Federal High Court is as prescribed in section 7 of the Federal High Court Act and section 230( 1) of the 1979 Constitution as amended by Decree No. 107 of 1993, that court cannot exercise supervisory jurisdiction over causes and matters arising from decisions taken by the Failed Banks Tribunal or  the Special Appeal Tribunal.

P.7

It is, I think, important at the outset to point out by saying that, as I see it, the problem was not so much with the decrees [Decree No. 25 of 1991 and Decree No. 18 of 1994] relied on for bringing charges to the Failed Banks Tribunal. It was more, and indeed squarely, with the perception of those who framed and prosecuted the charges and of their misapprehension of the-relevant provisions of the said decrees. It must be realised that neither Decree No. 25 of 1991 nor Decree No. 18 of 1994 is made retroactive. The 1991 Decree was made on 20 June, 1991 with the same commencement date. So also the 1994 Decree which was made on 9 November, 1994 had its commencement from that date. The respondent was charged with count 1 under the 1994 Decree. Section 19 created offences. Subsection (1) of the section 19 which is relevant to the said count 1 used words in no way suggestive that the offences relate or could relate to past acts of anyone sought to be charged thereunder. This tendency to the prospectivity of the provision is, in my view, reinforced by the commencement date of the Decree. I feel compelled at this point to reproduce section 19(1) in full as follows:
19.-(1) Any director, manager, officer or employee of a bank who
(a) knowingly, recklessly, negligently, willfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person
(i) without adequate security or collateral, contrary to the accepted practice or the bank’s regulations, or
(ii) with no security or collateral where such security or collateral is normally required in accordance with the bank’s regulations, or

P.8

(iii) with a defective security or collateral, or
(iv) without perfecting, through his negligence or otherwise, a security or collateral obtained; or (b) grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility which is above his limit as laid down by law or any regulatory authority or the bank’s regulations; or
(c) grants, approves the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility to any person in contravention of any law for the time being in force, any regulation, circular, or procedure as laid down, from time to time, by the regulatory authorities or by the bank; or
(d) receives or participates in sharing, for personal gratification, any money, profit, property or pecuniary benefit towards or after the procurement of a loan, an advance, a guarantee or any other credit facility from any person whether or not that person is a customer of the bank; or
(e) recklessly grants or approves a loan or an interest waiver where the borrower is known to have the ability to repay the loan and interest, is guilty of an offence under this Decree.
It is plain that each paragraph of subsection (1) looks to the present and future by talking only of what the culprit engages in doing but does not include even impliedly what he had done before the commencement date of the Decree. This appears to me to be in consonance with an intention to punish for an offence that was committed as from 9 November, 1994, the commencement date of the Decree. In other words, the decree did not envisage retroactive effect. Section 33(8) of the 1979 Constitution which was unsuspended and was then applicable also forbade retroactivity of criminality as follows:

P.9

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
It follows that Decree No. 25 of 1994 and section 33(8) of the 1979 Constitution were in harmony. There, was no conflict. That circumstance clearly upheld a fundamental principle of constitutional liberty based on the notion that a person is not to be punished for an act which was not a crime at the time it was done: see Aoko v. Fagbemi (1961) 1 All NLR 400. See also Ogbomor v. The State (1985) 1 NWLR (Pt.2) 223 at 233 where this court said that as a result of the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law, no person can be so tried and convicted on it.
The appellants argue that the Federal High Court does not have jurisdiction over matters contained in the originating summons and therefore could not entertain the action to take a reference in respect of them to the Court of Appeal. The matters in question are the declaratory reliefs sought and the order to set aside the conviction and sentence of the respondent. As submitted by Professor Adesanya, learned Senior Advocate for, the respondent, the right to seek these reliefs is predicated on the protection conferred by section 33(8) of the 1979 Constitution which the respondent alleges has been contravened. The said protection falls under Fundamental Rights, Chapter IV, of the 1979 Constitution.

P.10

The jurisdiction of the Federal High Court to entertain the action does not depend on whether it was empowered, at the relevant time, to try the offences with which the respondent was charged. What is important is the cause of action which he claims to have. If that cause of action comes within the ambit of the enforcement of any fundamental right contained in Chapter IV in the sense that the respondent alleges that any of the provisions of that Chapter has been, is being or likely to be contravened in relation to him, then the Federal High Court is eminently conferred with jurisdiction to entertain the action. The respondent has made it abundantly clear from the nature of his claim, and the questions he asked the Federal High Court to refer to the Court of Appeal, that his allegation is that his fundamental right has been contravened.
With due respect, I do not think that the argument of the learned Senior Advocate for the appellants that it is not within the competence of the Federal High Court to entertain an action of this type which is brought to protect a fundamental right is tenable. Section 1(5) of Decree No.18 of 1994 relied on by the appellants does not affect that right. The said provision was meant to deny a High Court the exercise of its supervisory jurisdiction or powers of judicial review in regard to Failed Banks Tribunal proceedings. It reads thus:
“Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, as amended, or any enactment to the contrary, the supervisory jurisdiction or power of judicial review of a High Court shall not extend to any matter or proceeding before the Tribunal duly constituted under this Decree.”
[Emphasis mine]
But the jurisdiction conferred on a High Court under section 46 of the 1999 Constitution is neither a supervisory jurisdiction nor the powers of Judicial review.

P.11

It is far beyond and outside of that. It is a special jurisdiction ‘conferred under Chapter IV provisions mainly for the purpose of enforcing or securing the enforcement of fundamental rights. Sub-sections (1) and (2) of the section read:
“46(1)Any person who alleges that any of the provisions of this Chapter has been, is being” ‘or likely, to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”

It is not in doubt that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing action in a High Court: see Director, S.S.S. v. Agbakoba (1999) 3 NWLR (Pt.595) 314.  The manner in which the court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the right so guaranteed under the Constitution. The court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons: see Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387. That seems to underline the concerns in regard to redressing a contravention of a fundamental right by liberalising the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.

P.12

It has been contended by Mr. Fagbemi, SAN as expressed in the submissions in a paragraph of the appellants’ brief of argument earlier paraphrased that the Federal High Court does not have the jurisdiction to adjudicate over “the matters contained in the originating summons” and therefore lacked the jurisdiction to entertain the motion by which the respondent sought a reference to the Court of Appeal. It was specifically argued that “the jurisdiction of the Federal High Court to inquire into causes and matters were as prescribed in section 7 of the Federal High Court Act and section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993. Although the learned Senior Advocate cited no decided case in support of this submission, I believe the decision of this court in Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 is the nearest to it. It is unnecessary for me to discuss that decision here since it would appear inapplicable to the circumstances of this case and more so, of course, that neither of the parties has placed reliance on it. There may be an appropriate occasion for that.
But it is enough to say that that decision came before the copious amendment made to section 230(1) of the 1979 Constitution [now section 251(1) of the 1999 Constitution by Decree No. 107 of 1993].
Under that provision of the 1999 Constitution, the Federal High Court, among other things, has jurisdiction in civil causes and matters-
connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal matters: see S. 251(d). subject to the said provision, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies: see S. 251(1)(q).

P.13

The Federal High Court shall also have and exercise jurisdiction and powers
in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of section 251: see S. 251(3).
The jurisdiction conferred on the Federal High Court by the above provisions covers matters concerning banking, foreign exchange and criminal causes arising therefrom, and the interpretation of the Constitution as it affects the action of the Federal Government against the present respondent. The claim as it stands raises no doubt that the Federal High Court must be seen to have jurisdiction to entertain it for the purpose of enforcing the fundamental right involved. However, for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for the enforcement or for securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of a fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right: see Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) 159, (2001) 1 SC (Pt. 1) 45. The reliefs sought by the respondent in this case are entirely to enforce a fundamental right.
Argument has been canvassed by the learned Senior Advocate for the appellants that section 5 of Decree No. 18 of 1994 created a right of appeal from the decision of the Failed Banks Tribunal. It is contended that the respondent duly exercised his right of appeal to the Special Appeal Tribunal which arrived at a decision on 29 May, 1997 and that by virtue of the said section 5, that decision shall be final.

P.14

It is submitted on that basis by him that the matter of the conviction of the respondent and sentence is regarded closed and the Federal High Court lacked the jurisdiction to entertain this claim as stated in the originating summons. That argument may sound attractive but, with due respect, it is without merit. The learned Senior Advocate for the respondent in his submission contends that where the jurisdiction of a Tribunal is being challenged, the fact that the statute which set up the said Tribunal says that its decision shall be final does not foreclose the jurisdictional issue. He citedNigerian Ports Authority v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82 at 95; Udosen v. National Electoral Commission (1997) 5 NWLR (Pt.506) 570. I find myself in agreement with this submission. It should be remembered that the action brought by the respondent in the Federal High Court is not to further appeal from the decision of the Special Appeal Tribunal.
It is an action brought under the fundamental rights procedure to show that the prosecution was done in violation of the right guaranteed to the respondent under section 33(8) of the 1979 Constitution. In other words, that his fundamental right under that section had been contravened by the Tribunal sitting in Lagos State when it convicted him of acts not constituting any offence at the time they were done. I am fully aware that the decision of that Tribunal or of the Appeal Tribunal is said to be final. I do accept that fact. But it is only final in regard to the proceedings which gave rise to the appeal. The appeal finally terminated those proceedings. But that did not terminate the respondent’s entitlement to seek appropriate redress for the alleged breach of his fundamental right arising from those proceedings in a competent court. This is not unusual.

P.15

In R. v. Medical Appeal Tribunal, exparte Gilmore (1957) 1QB 574 at p.589, a case where certiorari was sought, Parker, L. J. in considering the situation vis-a.-vis application for certiorari where statute provides that the decision of a Tribunal shall be final, put it thus:
“Sometimes, as here, the statute provides that subject to a specific right of appeal the decision shall be final. In such a case it may be said that the expression ‘shall be final’ is merely a pointer to the fact that there is no further appeal, and the remedy by way of certiorari is not by way of appeal………..In other cases the expression is used in the statutes when no rights of appeal are provided. In such a case it could be said that the expression was of no effect unless it was intended to oust the remedy by way of certiorari. Be that as it may, I am satisfied that such an expression is not sufficient to oust this important and well established jurisdiction of the courts.”
Again, in R. v. Nat Bell Liquors Ltd. (1922) 2 AC 128 at 159-160 Lord Summer observed:
“Long before Jervis’s Acts statutes had been passed which created an inferior court, and declared its decisions to be ‘final’ and ‘without appeal,’ and again and again the Court of King’s Bench had held that language of this kind did not restrict or take away the right of the court to bring the proceedings before itself by certiorari.” 

I have already said that a High Court has jurisdiction to entertain an application for a declaration brought under section 46 of the 1999 Constitution. That jurisdiction is directly and specially conferred by the Constitution and, as I have further said, it is rooted in the concept of the preservation and enforcement of entrenched fundamental principles of liberty. It is certainly wider in scope and effect than what the prerogative writ of certiorari can achieve; and is quite apart from the usual remedy by declaration which the High Court has power from time to time to make – that is to say, the remedy described in Taylor v. National Assistance Board (1957) 1 All ER 183 at 185 by Denning, L. J. thus:

P.16

“The remedy by declaration is available at the present day so as to ensure that a board or other authority set up by parliament makes its determinations in accordance with the law; and this is so, no matter whether the determinations are judicial or disciplinary.
The remedy is not excluded by the fact that the determination of the board is by statute made ‘final’.
Parliament gives the impress of finality to the decisions of the board only on the condition that they are reached in accordance with the law; and the queen’s courts can issue a declaration to see that this condition is fulfilled.”
This Court in Nigerian Ports Authority v. Panalpina World Transport (Nig.) Ltd. (supra) at p. 95 per Coker, JSC said thus:
“Concerning the effect of section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, the learned trial Judge observed in the course of his judgment as follows:
‘While I think that these provisions of the Supremacy and Enforcement of Powers Decree No. 28 of 1970 completely oust the jurisdiction of the court in matters within the contemplation of a Decree, I do not consider that matters which are not in contemplation of the decree in question can enjoy the protection which the Supremacy and Enforcement of Powers Decree gives. In other words I am saying that if by a decree a tribunal is set up to be final; and the tribunal proceeds to take a decision completely outside or in excess of its jurisdiction, it is my view that this court is in cases properly within its territorial jurisdiction, competent to make a declaration on it.’
We are in agreement with the statement of the law as expressed by the learned trial Judge on this point.”

P.17

I have no doubt that this confirms the logic that no ouster clause is ever intended, or has that monstrous effect, to confer powers on an inferior tribunal to be able to flout and transcend the very purpose of the law it seeks to enforce by precluding a competent court from intervening in any event, no matter to what extent that tribunal exceeds its jurisdiction. That will simply lead to judicial anarchy permitted to be caused by inferior tribunals. For as said by Mellor, J., in Ex Parte Bradlaugh (1878) QBD 509 at p. 513:
“It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.”
See also R. v. His Honour Judge Sir Donald Hurst (1960) 2 All ER 385 at 389 per Lord Parker, C. J.

I have earlier reproduced the provision of section 33(8) of the 1979 Constitution. It is a provision which prohibits retroactive penal laws as well as retroactive construction of penal laws to punish any person. It is a constitutional right which cannot be taken away retrospectively by any subterfuge as long as that provision remains active. It is the Constitution which, as the organic law of a country, declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. It is the duty of the authorities, including the judiciary, to ensure its observance. The position of the courts is quite crucial in this regard for the purpose of safeguarding the constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be examined with close and anxious scrutiny to make sure that what is arrived at is objectively in conformity with the spirit of the constitutional guarantee.

P.18

If I may say so, as far as this court is concerned (and happily this is the trend), whenever an aspect of personal liberty is properly raised in any proceeding, the focus on the constitutional question is intence and intensive, and a solution which projects the essence of the constitutional guarantee is proffered. That is the way the constitutional question in the present case must be attended to.
It is plain to me, and I express the respectful view, that the final decision of the Special Appeal Tribunal, an inferior court, cannot foreclose the enforcement of the constitutionally entrenched right of the respondent not to be convicted of an act which did not constitute an offence at the time it was committed. No court or tribunal has any-jurisdiction to so convict; and cannot by ruling otherwise that it has jurisdiction, or by keeping quiet about it, confer jurisdiction on itself. That is what section 33(8) of the 1979 Constitution has guaranteed and it must have its full impact on the proceedings before the Failed Banks Tribunal.Sections 1(1) and 13 of the 1979 Constitution (same as in the 1999 Constitution) are to ensure that there is no infraction of the Constitution (unless specifically overridden by a decree during the unconstitutional Military regime). Section 1(1) states that the Constitution is supreme and its provisions shall have binding force on “all authorities and persons throughout the Federal Republic of Nigeria. Section 13 which comes under the Fundamental Objectives and Directive Principles of State Policy, Chapter II, provides thus:
“It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.”

P.19

Fundamental rights are regarded as part of human rights. The trend in every modem society where the rule of law operates is to protect them for the enhancement of human dignity and liberty. Retroactive or ex post facto laws which impose criminal penalties are regarded as inhuman and an affront on liberty. In Marks v. United States 97 S.C 1990 (1977), the defendants were convicted in the United States: District Court for the Eastern District of Kentucky of transporting obscene materials in violation of a Federal statute. They petitioned for certiorari to quash the conviction on the basis that their conduct did not constitute an offence before the statute was enacted and that their conviction violated the protection given under the due process clause of the Fifth Amendment against ex post facto laws. Mr. Justice Powell delivering the opinion of the United States Supreme Court said at pp. 992-993:
“The ex post facto clause is a limitation upon the powers of the Legislature ….”
Continuing, he stated the principle warranting this when he observed thus:
“The principle on which the clause is based – the notion that persons have a right to fair hearing of that conduct which will give rise to criminal penalties – is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the due process clause of the Fifth Amendment.”
That due process clause is similar to the provision of section 33(8) of the 1979 Constitution.  Mr. Fagbemi, SAN has argued that it was too late for the respondent to rely on that provision. He bases this on what he regards as issue estoppel. He says that arguments having been raised in respect of jurisdiction before the Special Appeal Tribunal, as admitted by the respondent, that “on the 29th May 1997 the Special Appeal Tribunal, delivered its judgment and surprisingly it did not deliver any formal written ruling on the issue of jurisdiction in view of section 33(8) of the Constitution, it merely held that it had considered the matter and that it has jurisdiction and the appeal Tribunal then proceeded to affirm the judgment of the lower Tribunal but at the same time reduced considerably the sentences …. “,

P.20

This court ought not to allow this action to proceed further on the ground of res judicata since that decision on jurisdiction stands as issue estoppel. He has placed reliance on F.C.D.A. v. Sule (1994) 3 NWLR (Pt.332) 257; Military Adm. of Benue State v. Ulegede (2001) 2 NWLR (pt. 696) 73, (2001) 9-10 SC 180; Ebba v.Egodo (2000) 10 NWLR (Pt.675) 387; Shanu v. Afribank Plc. (2002) 17 NWLR (pt.795) 185, (2002) 6 SC (pt.2) 135.
But Professor Adesanya, SAN’s submission on the point is that estoppel cannot apply to validate an illegal act or to give jurisdiction where it is alleged to be lacking by precluding an aggrieved party from raising the issue of lack of jurisdiction or the illegality of the act. He cited Onamade v. African Continental Bank Ltd. (1997) 1 NWLR (Pt.480) 123 and Josiah Cornelius Ltd. v. Ezenwa (1996) 4 NWLR (Pt.443) 391. I think there is a grave misunderstanding here. What is in issue in this case is not whether the question of jurisdiction had been decided by the Special Appeal Tribunal. Apart from my view on reading those authorities cited, that I do not find them quite applicable here, what must prevail is whether there was lack of jurisdiction to try charges framed with retroactive effect. The fact that the Special Appeal Tribunal gave an interpretation which enabled it to assume jurisdiction does not close the matter as it relates to the contravention of a fundamental right. The position of the law, as I understand it is that when an inferior tribunal or court acts in complete disregard of ex post facto clause, [similar to section 33(8) of the 1979 Constitution] either through inadvertence or misconception, the person affected has a remedy under section 46 of the 1999 Constitution.

P.21

In that regard, it becomes irrelevant in the present action whether or not the issue of jurisdiction was pursued by the respondent or ruled upon by the Tribunals. If indeed the Failed Banks Tribunal had no jurisdiction to try and convict the respondent of that offence, that status of the Tribunal remains a fundamental question, and a High Court which is approached on that basis under the Fundamental Rights Procedure to enforce the protection given under section 33(8) has an obligation to do so. In Bonnie v. City of Columbia 84 S.Ct. 1697 (1964), Mr. Justice Brennan delivering the opinion of the Court in regard to a misconceived construction of ex post fact, clause, which I consider has a defining effect on Mr. Fagbemi, SAN’s submission on the point, observed inter alia at pages 1702-1703:
“There can be no doubt that a deprivation of a right of fair hearing can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language……Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law such as Art. 1, section 10, of the Constitution forbids. An ex post facto law has been defined by this court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was when committed.’ If a state legislature is barred by the ex post facto clause from passing such a law, it must follow that a State Supreme Court is barred by the due process clause from achieving precisely the same result by judicial construction …

P.22

The fundamental principle that ‘the required law must have existed when the conduct in issue occurred,’ must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s-review of a federal question….The standards of state decisional consistency applicable in judging the adequacy of a state law are also
applicable, we think, in determining whether a state court’s construction on a criminal statute was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him….When a similarly unforeseeable state-court construction of a criminal, statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of fair warning that his contemplated conduct constitutes a crime.”
As can be seen from the facts of this case, the respondent was in the circumstances convicted on count 1 of an act which did not constitute an offence at the time it was done when, as must be admitted, it was not within the jurisdiction of the Failed Banks Tribunal to so convict by virtue of the prohibition contained in section 33(8) of the 1979 Constitution. The fact that the Special Appeal Tribunal arrived at an unforeseeable and indefensible decision in which it took a retroactive view of Decree No. 18 of 1994 cannot preclude the High Court from giving appropriate relief under Fundamental Rights guaranteed by the Constitution. 

P.23

Moreover, it is elementary but basic principle of law that jurisdiction is fundamental to any decision. It is therefore a condition for relying on res judicata or issue estoppel to establish that the decision was reached by a court competent to do so having regard to the subject-matter. A decision arrived at by a court without jurisdiction, or by a court on a subject-matter which the Constitution or statute forbids it from entertaining, can neither constitute res judicata nor issue estoppel: see Fadiora v. Gbadebo (1978) 3 SC 219; Bamishebi v. Faleye (1987) 2 NWLR (Pt.54) 51; Iyowuawi v. Iyowuawi (1987) 4 NWLR (Pt.63) 61. And it is also the law that since proceedings conducted without jurisdiction are null and void [Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1] no act of waiver, or act that may be seen to have that effect, can confer jurisdiction to validate such proceedings: see Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It seems to me that under no point of view can Mr. Fagbemi’s submission on res judicata or issue estoppel applying against the respondent be tenable.
At this stage, I think I can briefly dispose of the argument in respect of section 2 of the Public Officers Protection Act (Cap. 379) Laws of the Federation of Nigeria relied on by learned Senior
Advocate that the respondent’s action was statute barred. It would be argument carried too far to say that the Public Officers Protection Act applied to bar a relief sought in connection with an error committed in purely judicial capacity. It does not. The remedy sought is to enforce a constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it would likely conflict with court rules.
Issue 2 
There is the issue of the reference made by the Federal High Court to the Court of Appeal after hearing only counsel for the respondent.

P.24

The appellants had argued in the court below that it was improper for the Federal High Court to have made the reference to the Court of Appeal after hearing only the respondent’s counsel upon what was filed as a motion on notice. The appellants were not in court and were unrepresented on that occasion. The court below, however, saw no injustice suffered by the appellants. The learned Justice of Appeal, Aderemi, JCA, in his leading judgment regarded the application for a reference as an ex parte application. He observedinter alia:
“It is true that there is no satisfactory evidence that copies of the motion were served on the defendants. In effect, that application was in the form of an ex parte one when it was granted. An ex-parte application by its very nature is one in which the other party is not put on notice before the application is heard and determined by the court ….. In my respectful view, this type of application is one that is necessary to be taken before the commencement of a substantive matter. It cannot be said to be a negation of fair hearing. I find support for this pronouncement in the case of 7-Up Bottling Co. Ltd. v. Abiola & Sons Ltd. (1995) 3 NWLR (Pt.383) 257 where the Supreme Court at page 280 held:
‘There is no doubt that the right to fair hearing under the Constitution is synonymous with the common law rules of natural justice. However, because of the nature of certain preliminary steps that have to be taken before the commencement of substantive matters, the rules of court have made provisions for ex-parte applications and there is nothing unconstitutional in such rules.’
As I have said above, the sole purpose of bringing that application before the court below is to get that court to transfer, in its entire package the suit that was before it which, in the view of the applicant, involves a substantial question as to the interpretation of the provision of the Constitution. Whether such an application is granted or not the material facts that ground the suit will not be diminished from.”

P.25

It was based on the above-stated passage in the judgment of the court below that the appellants raised the said issue 2,
“Was the Court of Appeal right in its application of the Supreme Court decision in 7-Up Bottling Co. Ltd. v. Abiola & Sons Ltd. (1995) 3 NWLR (Pt.383) 257 to the facts of this case and in its justification of the hearing ex parte of the motion on notice praying for the reference? – ground 5.”
Mr. Fagbemi, SAN has argued that there was no parallel between the facts of this case and those of 7-Up Bottling case and the purposes the two were meant to serve. His contention is that this case is about making a reference by order on a constitutional issue to the Court of Appeal whereas the other case was about granting an ex parte order of injunction. While the latter has rules of court regulating and permitting such an order, the former has no known court rules as such. I think there is merit in this argument and on that basis I am unable to resist saying that the court below was wrong in its reliance on the case of 7-Up Bottling (supra).
The matter does not, in my opinion, end there. In his submission that the appellants were not given a fair hearing, Mr. Fagbemi relied on the provision of section 36(1) of the 1999 Constitution which says:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

P.26

Professor Adesanya has on the other hand argued that in a situation like this where what was done by the court was just a step towards coming to determining the civil rights and obligations of a party in any proceedings, such as what Uwais, JSC (now CJN) referred to as “certain steps to be taken, which are incidental or preliminary to the substantive case” including “motions for directions”, but not really going to determine the civil rights and obligations, there may not be much about a denial of fair hearing if done ex-parte – see 7-Up Bottling (supra) at pp.280-281. But I must say that the observation was made in relation to the rules of court which allow such procedure. It does not settle the question whether a reference could be made after listening to only one of the parties to an action upon his request for a reference.
Let me first state in what circumstances a reference may be made to the Court of Appeal by a High Court. The relevant provision of the 1999 Constitution is section 295(2) in the present case where the reference was made by the Federal High Court. It reads:
“295(2) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that ,the question involves a substantial question of law, the court may, and shall if any party to the proceedings so request, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
This provision and similar ones have received judicial consideration in many cases.
It is clear from those cases that there are conditions which must exist before a reference can be made under this provision.

P.27

First, the question must be as to the interpretation or application of the Constitution. It is the foundation for  even contemplating making a reference: see Gamioba v. Esezi II (1961) 2 SCNLR 237; Atake v. Afejuku (1994) 9 NWLR (Pt.368) 379. Second, such a question must arise in the proceedings in connection with an issue before the court making the reference: see Olawoyin v. Commissioner of Police (No. 2) (1961) 2 SCNLR 278, (1961) 1 All NLR 203; Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt.727) 468, (2001) 7 SC (Pt.11) 62. Third, the matter for reference must involve a substantial question of law. The court making the reference must decide the substantiality of the question: see African Newspapers of Nigeria Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (pt.6) 137. There might be instances where the question presents no difficulty in ascertaining whether it is substantial or not. But it is useful to take as a guide what was said by the Federal Supreme Court in Gamioba v. Esezi II (supra) at p.588 per Brett, F. J. that the question “must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced.” Fourth, the court making the reference to the higher court is not required to, and must not, give an opinion of law on the question: see Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 SC 112; (1981) 2 NCLR 358.
In the present case, after Odunowo, J. had listened to Professor Adesanya, SAN requesting that a reference be made to the Court of Appeal under seclion 295(2) along the line of the two questions he formulated, the learned trial Judge said:
“Having perused the papers filed herein, I am of the opinion that the question raised by the present application raises a substantial question of law which requires the attention of the Court of Appeal.

P.28

Consequently the application is hereby granted and the case shall be referred to the C/A by way of case stated in terms of section 295(2) of the 1999 Constitution.”
I do not think it can be disputed that the reference was in compliance with the terms of s. 295(2) in regard to the four conditions I have stated above. In particular, let me say by way of emphasis that the reference was as to the application of a section of the Constitution which itself raises substantial question of law arising in the proceeding before the Federal High Court and necessary for deciding the claim before it. The appellants have not made any issue of this.
What is in contention is the substance of the complaint by the appellants as expressed in their brief of argument that “the non service of the motion for reference on the appellants as found by their Lordships of the Court of Appeal ought to have made their Lordships to return a verdict that the appellants’ constitutional right to fair hearing had been breached.” In the African Newspapers of Nigeria Ltd. case (supra), while considering section 259(3) of the 1979 Constitution [same as section 295(3) of the 1999 Constitution], Obaseki, JSC observed at page 156:
“To invoke the aid of the section, there must be asubstantial question of law involved as to the application and interpretation of the Constitution. It is only after a decision on this question has been taken that the Court of Appeal may suo motu decide to make a reference of the question to the Supreme Court. This is when none of the parties requests a reference of the question. If however, the parties or any of the parties request or requests such a reference, the Court of Appeal is under a duty to refer the question to the Supreme Court for its decision and directions as the provisions are couched in mandatory terms.”
He added that reference must be made so long as the Supreme Court has made no pronouncement on the question in any matter it has disposed of.

P.29

In Rossek v. African Continental Bank Ltd. (1993) 8 NWLR (Pt.312) 382 at p.474 per Bello, JSC (later CJN) and at p.463) B per Onu, JSC, the same view as to the mandatory nature when a party makes a request for a reference was expressed. Recently, Karibi-Whyte, JSC said in Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt. 727) 468; (2001) 7 SC (Pt.11) 62 at 76:
“The section has also prescribed when and by whom the provision can be invoked. The court is vested with discretion to invoke the provision suo motu and also if the parties to the proceedings so request. Thus the court may suo motu and must make the reference on the parties’ request.”
It cannot be disputed that section 295(2) envisages two independent situations in which a court makes a reference. After satisfying itself that a serious question of constitution arising from the case before it exists, the court may, suo motu decide to make a reference. I expect that it will under normal circumstances make this known to the parties in court. But at this stage it is not bounden on it to make the reference. It may for one reason or another consider that there is no need to do so. However, if in those circumstances which might have engaged it, on its own, to make a reference or not, any of the parties were to request for a reference, then it would be left with no choice but to do so. It would be a bounden duty made so by the mandatory language of the provision.
Therefore it is plain that when the proper conditions for making a reference are present the court to which the request is made has no discretion. It is bound to make the reference. When all the parties G involved make a request there is certainly nothing more to expect from the court in order to make the reference. But when only one of the parties makes the request, still the provision says that it is mandatory on the court to make the reference.

P.30

Now, the appellants argue that not to ask the view of the other party or parties before the reference is made in that circumstance is tantamount to a denial of a fair hearing. To my mind, the insistence by such a party on the observance to the letter of section 36(1) of the Constitution in this scenario [i.e. the scenario where all the conditions for making a reference are admittedly present and the court cannot exercise any – discretion no matter what the other party may say in opposition to a request] is perhaps, to say the least, problematic. Is a reference in those circumstances as it pertains to that party something “in the determination of his civil rights and obligations” such as to warrant his entitlement to “a fair hearing within a reasonable time”, going by the actuality of what a reference connotes, and having regard to the spirit of section 36(1)?
I must confess I have no intention of playing down the general principle of audi alteram partem. However, I do not think this court was sufficiently addressed on this knotty point. Even so, I find it difficult to understand that the reference simpliciter was a determination which was likely to affect the civil rights and obligations of the appellants. I think a party who alleges a denial of a fair hearing in reliance on the provision of section 36(1) ought at least to show how that alleged denial fits into the essence of that provision, and the unfair or likely unfair consequence of the infraction of that provision. See the judgment of this court in Kenon v. Tekam (2001) 14 NWLR (Pt.732) 12 at 34. At the moment I do not see how it may be said that what happened in this case can fit into section 36(1) in the circumstances of the application of section 295(2) of the 1999 Constitution, and what unfair or likely unfair consequence 4 would follow.

P.31

Issue 6 .
The charge in count 1 says that the respondent “conspired to commit a felony, to wit fraudulently granting credit facilities to Dubic Industries Limited without lawful authority …” The offence in question as stated in section 19(1)(a) of Decree No. 18 of 1994 does not use the word “fraudulently” but says, any director etc of a bank who “knowingly, recklessly, negligently, wilfully or otherwise grants…..” In considering whether there was an offence envisaged under that section of “fraudulently granting”, the court below said:
“The crucial issue is whether there was the offence charged to wit ‘fraudulently granting credit facilities’ is (sic)contained in an existing law. I have said supra that the offence charged as couched in the charge is unknown to any law…..A conviction for ‘fraudulently granting credit facilities’ as was passed in the court below (sic) is a violation of the provisions of section 33(12) of the Constitution as that offence is not defined under the law on which the count was laid.”
Mr. Fagbemi has argued that the above reasoning was a misdirection since looking at the entire proceedings and the circumstances of the charge, whatever defect there was in using the word “fraudulently”, the word described the manner in which the accused granted credit facilities to Dubic Industries Limited (a company owned by him), and that he was in no way misled by the use of that word. Professor Adesanya in reply has submitted that the use of the word “fraudulent” created an additional mental element known as mens rea to the offence created under section 19(1)(a), and that the case of Ogbomor v. The State (1985) 1 NWLR (Pt.2) 223 relied on by Mr. Fagbemi was distinguishable and clearly inapplicable.
I think Ogbomor v. The State (supra) is applicable to the extent only that it cited’ and applied the provision of section 166 of Cap. 80, Laws of the Federation (The Criminal -Procedure Act) which
says:
“No error in stating the offence or the particulars required to be stated ,in the charge and no omission to state the offence or those particulars shall -be regarded at any time of the case material unless the accused was in fact misled by such error or omission.”

P.32

I need to add that sections 167 and 168 make further provisions in regard to how and when such error should be pointed out. They read:
“167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.
168. No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court.”
Besides, the use of the word “fraudulently” can, in my view, be accommodated under the ejusdem generis rule to stand in for the word “otherwise” as used in section 19(1)(a) of Decree No. 18 of 1994. In effect, ejusdem generis (or sometimes noscitur a sociis) rule helps to confine the construction of general words within the genus of special words which they follow in a statutory provision or in a document; see Fawehinmi v. Inspector-General of Police (2002) 7 NWLR (Pt.767) 606 at 683. It means that where there are general words following particular and specific. words, the general words must be confined to things of the same kind as those specified. It is 196 Nigerian Weekly Law Reports 27 October 2003 (Uwaifo, J.S.C.) said to be a question of the assumed intention of the statute: see Scales v. Pickering (1828) 4 Bing. 448 at 452-453; (1828) 130 ER 840 at 841-842.

P.33

In a New Zealand case of Cooney v. Covell (1901) 21 NZLR 106 at 108, Williams, J. stated thus:
“There is a very well known rule of construction that if a general word follows a particular and specific word of the same nature as itself, it takes its meaning from that word, and is presumed to be restricted to the same genus as that word. No doubt that rule is one which has to be followed with care; but if not to follow it leads to absurd results, then I am of opinion that it ought to be followed.”,
In this particular case, the assumed intention is to punish based on the mental element of an accused in granting irregular facilities etc. Not to follow the rejusdem generis rule to accept that “fraudulently” comes within that mental element of “knowingly, recklessly, negligently, wilfully” used in section 19(1)(a) is to create’ an absurd result if the evidence actually shows fraud. If it does not show fraud but any of the other elements, there is no reason why an amendment to the charge made at the appropriate time cannot be allowed. I am satisfied that the respondent was not misled and that the charge as framed is not defective. As a matter of fact, the burden on the appellants somehow initially became higher on the face of the charge to prove that particular aspect of the charge beyond mere knowingly, recklessly, negligently or wilfully but that the act of the respondent was fraudulent although proof of any of those other elements would ultimately suffice, in my view. The use of the word “fraudulently” in the charge does not, it would appear to me, make the offence unknown to law. All that might need to be done would be an appropriate amendment followed by compliance with due procedure. That leads me to say that what I have discussed under this issue would be relevant in an appeal proceeding from the decision of the Failed Banks Tribunal or on further appeal from the Special Appeal Tribunal if it were available. But that is not the focus in the present case as it completely misses the constitutional point in issue.

P.34

What this court is concerned with is whether there had been an infraction of the relevant provisions of section 33 of the 1979 Constitution. I can hardly see how the use of the word “fraudulently” in the charge in question could have brought that about. The elements that constituted a contravention of the respondent’s fundamental right have already been discussed in this judgment and I hope the issue is reasonably clear. I think the court below erred in its view that the charge as framed contravened section 33(12) of the 1979 Constitution in that it was in respect of an offence not defined under the law.
Issue 3
This issue was formulated from ground 2 of the grounds of appeal. The said ground of appeal reads:
“(2) The Court of Appeal erred in law in holding that the conviction of the respondent was contrary to section 33(12) of the 1979 Constitution, and, therefore, void, when that law was not relevant at all material times material to this case.” (sic)
Particulars
(a) By section 28 .of Decree No.8 of 1994, the provisions of section 33 of the 1979 Constitution is inferior to Decree No.18 of 1994. It was wrong to declare acts taken under Decree No.18 of 1994void, when the Decree is superior to the Constitution.”
Now, the issue distilled from the above is as reproduced earlier on. I shall recite it here again for proper effect. It reads –
“Was the Court of Appeal right in holding that the provisions of section 33(8) and (12) of the 1979 Constitution took precedence over the Failed Banks and BOFID Decrees in the face of the Supreme Court restatement of the hierarchy of our laws during a military interregnum.”
The argument in support of this issue in the main is that the court below wrongly placed, to use the words of learned Senior Advocate for the appellants, “pre-eminence in hierarchy of laws on the 1979.

P.35

Constitution without cognizance of the fact that at all material times relevant to the accrual of the cause of action, military regime and their decrees held sway.” The argument went further to say that what the Court of Appeal was invited to do and which it did by the reference made to it was to pronounce on the superiority of certain sections particularly sections 33(8) and 33(12) of the 1979 Constitution over the Failed Banks Decree No.18 of 1994 and the Banks and Other Financial Institutions Decree of 1991. He cited Osadebey v. Attorney-General of Bendel State (1991) 1NWLR (Pt. 169) 525; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652, Attorney-General, Bendel State v. Agbofodoh(1999) 2 NWLR (Pt. 592) 476; Attorney-General- Ondo State v. Attorney-General, Ekiti State (2001) 17 NWLR (Pt. 743) 706. These authorities establish that by-the hierarchy of our laws, decrees attained the highest position during the military dictatorship.
With due respect to the learned Senior Advocate, this is completely beside the point in this case. As I earlier showed, neither Decree No. 25 of 1991 nor Decree No. 18 of 1994 constituted any problem. They were not enacted with retrospective effect. So there was no conflict between them and section 33 of the 1979 Constitution. They were in consonance. Therefore the hierarchy of the laws in this country as they stood at that time was at no time called into question. The need simply did not arise. The undue problem was created by those who framed and prosecuted the charges in question. I am of the view that issue 3 has served no purpose in this appeal. Having regard to what I have discussed in this judgment, I hold that this appeal wholly lacks merit and accordingly I answer the two questions referred by the Federal High Court as follows:
Question (1): The answer is no
Question (2): The answer is no

P.36

I order that the case be resumed at the Federal High Court and direct that it should be dealt with in the light of this decision and the answers given to the two questions. I dismiss the appeal and make no order for costs. Each party to bear its own costs.