Jurisdiction of Selected Tribunals in Nigeria Essay
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This work will be divided into various parts. We shall explore the various meanings of the word jurisdiction. Broad types of tribunals shall be briefly mentioned. We shall then select five Tribunals whose jurisdiction we shall later look into in details. We shall attempt examining the reasons behind the creation of our selected Tribunals. The reason for denying ordinary courts jurisdiction shall be looked into. We shall, after examining the composition of the various tribunals selected, try to see whether the advantage of specialization was achieved.
Jurisdiction is derived from the Latin word “juris” and “dico” and literally means “I speak by the law”.1 The word jurisdiction implies a court or tribunal with judicial power to hear and determine a case and such tribunal cannot exist except by authority of law.2 Jurisdiction always emanates directly and immediately from the law. It is a power which nobody on whom the law has not conferred it can exercise.3 As sometimes used, it means power, authority, power over the particular “res” or subject.
The word is frequently used however as meaning authority to do the particular thing done, or conversely a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which a board or tribunal has, the doing of something in excess of the power possessed.5
Looked at another way, one may say that jurisdiction is a matter of power and covers wrong as well as right decisions or rightfully or wrongfully and does not depend on the correctness of the decision made.6 Also, in a broad and general sense, jurisdiction is judicial power and fundamentally, the term means the power or capacity given by law to a court or other body or officer to hear and determine certain controversies.7
There are various types of Tribunals. For instance we have:
(a)“Strong Policy Element Tribunals”
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(c) “Court Substitute Type Tribunal”.
It has been argued that courts are generally too expensive, too formal, too technical in procedure, lacks expertise and that there is also doctrinal lack of policy consciousness on the part of the courts.8 Also, it has been said that the difference between court-substitute type Tribunal and the Regular Courts are their cheapness; their speed and efficiency, their privacy and their informality.9
In choosing the jurisdiction of Tribunals to examine in this paper, we are guided by convenience. All our tribunals show a common parentage in being creations of the military at different times in response to perceived problems facing the nation. In this paper, we shall be examining the jurisdiction of:
(a) Recovery of public property Special Military Tribunal;10 (b) Tribunal constituted under Robbery and Firearms (Special Provision) Act;11
(c) Miscellaneous Offenses Tribunal;12
(d) Tribunal constituted under Exchange Control (Anti-Sabotage) Act;13 and
(e) Special Appeal Tribunal.14
The aim of the Recovery of Public Property (Special Military Tribunal) Act was to make provisions for the investigation of the assets of any public officer who is alleged to have been engaged in corrupt practices, unjust enrichment of himself or any other person who has abused his office or has in any way breached the code of conduct for public officers contained in the Constitution of the Federal Republic of Nigeria.15
The need arose because of the high level of corruption and abuse of office by the Second Republic politicians and public servants. The aim of the law setting up the Robbery and Firearms Tribunal was to make comprehensive provisions for matters relating to armed robbery.16 This was necessitated by the spate of armed robbery that greeted the cessation of the civil war in 1970.
Similarly, the aim of Special Tribunal (Miscellaneous Offenses) Act was to create a number of miscellaneous offenses with stiff penalties and also to establish a Special Tribunal for the trial of such offenders.17 The objective of the government could be discerned from the variety of offenses that were to be tried by the tribunal. As regards the Tribunal set up under the Exchange Control (Anti- Sabotage) Act, the aim was to make special penal provisions with respect to acts subversive of the exchange control legislation in force in the country. It also prescribed stiff penalties.
With the dwindling of foreign exchange receipts by the country as a result of fall in the price of major foreign exchange earner, oil and the massive fraud perpetrated by few individuals and companies in dealings relating to foreign exchange, the creation of such a Tribunal became a foregone conclusion.
It could not be doubted that many people were very uncomfortable about the lack of provision for appeal in the numerous Tribunals that were created by the military government.19 In fact, Mr. S.I.O. Giwa-Amu was quoted as having said that “detractors of the Federal Military Government will surely argue that the rules of natural justice are breached since the executive initiates the proceedings, the executive adjudicates, the executive confirms the decision and the executive is the sole beneficiary of the whole proceedings! That independent third arm of government, the judiciary, which is supposed to adjudicate impartially between a citizen and the executive is made to play second fiddle by acting in an advisory capacity. Many critics will regard this Decree as an implicit vote of no confidence in the judiciary”.
Besides, it could be argued that the “tribunal culture” of the military administration does violate the principle of separation of powers. It is our view that it was the expressions of feelings like the aforementioned that led the Babangida’s administration in its initial “Human Right” posture to amend the Recovery of Public Property (Special Military Tribunal) Decree, 1984, leading to the creation of the “Special Appeal Tribunal”21 which in our view seem to confirm the conviction of the seasoned professor of Public Law Abiola Oja when he opines thus: “…an important mechanism for delft correction in any judicial system is the process of appeal or judicial review. This not only ensures thoroughness and fairness in the lower courts, being conscious that there is the possibility of a higher court re-examining their records and decisions. It also gives the litigant that assurance and satisfaction that they have a second and third chance of another independent judicial body reviewing their case… To insist that there would be no appeals from the decision of a body is to assume that such a body is perfect and cannot make mistakes even of law”.
It is to the eternal credit of the Babangida’s administration that it took the above bold decision which other anti-human rights proponents may regard as time wasting in a military regime. The point must be made that opinions were divided on the utility of Tribunals in Nigerian Legal System; for instance, some were in agreement with the view that Tribunals have always been set up for special purposes that might not be appropriate for the ordinary courts. The size, degree, complexity and style of economic mismanagement that the country has been subjected to; the size of operation involved and the need to ensure speedy investigation and trial of these cases are thought to be unsuitable for the ordinary courts of law.
Equally, the idea of using the ordinary courts for the trial of public officers who have unjustly enriched themselves for the purpose of recovering the properties has not found favour in some quarters. It is said that the processes of the courts are too slow and involved, that lawyers would introduce unnecessary and irrelevant technicalities thereby creating confusion and delay that the mood of the nation does not favour unending adjournments; that it is a fallacy to assume that only lawyers can be impartial and objective than the gift of interpretation of the law is a monopoly of the learned men and that judges are too removed and aloof from concrete societal problems to be realistic in their appreciation of the needs and mood of society.
There is no doubt that it was the above views which contributed in no small way in the creation and usage of Tribunals especially the Tribunal 4 | P a g e created under the Recovery of Public Property (Special Military Tribunals) Act.
On the other hand, it has been contended that “although the sheer vandalization and abuse of the economy of the nation calls for urgent and drastic solution to save the nation from collapse, care should also be taken to balance the interest of the public with the right of the ordinary persons”. The greatest villain still has the right to protection in the legal system and that “although the conditions in Nigeria today make it imperative to extend the use of tribunals for trial purposes, particularly as affecting civil liberties, the limitless use of them to destroy or undermine the potency of the judicial power and functions of experts and expertise is unjustified”.25
Under the Recovery of Public Property (Special Military Tribunal) Act, the Tribunal had the jurisdiction to try any public officer who: (a)has engaged in corrupt practices or has corruptly enriched himself or any other person;
(b)has, by virtue of abuse of his office, contributed to the economic adversity of the Federal Republic of Nigeria;
(c) has in any other way been in breach of the code of conduct; or (d) has attempted, aided, counseled, procured or conspired with any person to commit any of the offenses set out in this Section.26 The Tribunal created under Robbery and Firearms (Special
Provisions) Act has jurisdiction to try any person who commits the offence of robbery and the person us armed with any firearm or any offensive weapon or is in company with any person so armed; or at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person.
Also, it has power to try any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen. Similarly, any person found in any public place in possession of any firearms whether real or imitation and in circumstance reasonably indicating that the possession of the firearms is with intent to the immediate or eventual commission by that person or any other person of offence of robbery is liable to be tried by the tribunal.
Persons possessing firearms illegally, those sheltering and treating armed robbers are equally liable to be tried by the Tribunal.27 The Tribunal set up under the Special Tribunal (Miscellaneous Offenses) Act known as Miscellaneous Offenses Tribunal has the jurisdiction to try the following offenses: forging and uttering negotiable instrument, willful destruction of public property, arson on public building, dwelling house, office or structure whatsoever whether completed or not occupied or not or to any vessel, ship, aircraft, railway track or wagon or vehicle or to any mine or the working, fittings, or appliances of a mine; arson of cultivated vegetable produce; or mineral or vegetable fuel; unlawful destruction of highways; tampering with oil pipelines.
Importing or exporting of mineral or mineral ore; tampering with electric plant, works, cables, wire or assembly of wires designed or used for transforming or converting electricity. Tampering with electrical fittings; meters or other appliances used for generating, transforming, converting, conveyancing supply in or selling electricity; tampering with telephone wires; tampering with postal matters; unlawful exportation of commodity; selling of prohibited goods; importation and exportation of dangerous drugs like cocaine and heroin, cheating at examination, dealing with petroleum products and adulteration of petroleum products.
The Tribunal set up under Exchange Control (Anti-sabotage) Act has jurisdiction over the following offence: “Any person who, whether or not before the commencement of the Act but not earlier than 1st October 1979 does any of the following things that is to say:
a) Without the permission of the appropriate authority:
(i) makes any payment to or for the credit of a person resident outside Nigeria, or
(ii) makes any payment to or for the credit of any person resident in Nigeria by order or on behalf of a person who is resident outside Nigeria, or (iii) makes any payment whatsoever in respect of any loan, bank overdraft or other credit facilities outside Nigeria or places any sum to the credit of any person resident outside Nigeria.
b) Without the permission of the appropriate authority and being a person resident in Nigeria makes any payment outside Nigeria to or for the credit of a person resident outside Nigeria, or takes or accepts any loan, bank overdraft or other credit facilities. c) Without the permission of the appropriate authority in Nigeria makes any payment to or for the credit of any person resident in Nigeria or being resident in Nigeria makes any payment outside Nigeria to or for the credit of any person resident in Nigeria at consideration for or in association with:
(i) the receipt by any person of payment made outside Nigeria or the acquisition by any person of property which is outside
(ii) the transfer to any person or the creation of a favour to any person, of a right (whether present or future, or whether
vested or contingent) to receive a payment outside Nigeria or to acquire property which is outside Nigeria.
d) Without the permission of the appropriate authority and not being authorized dealer, in Nigeria buys or borrows any foreign currency from sells or lends any foreign currency to any person other than an authorized dealer.
e) Without the permission of the appropriate authority and not being an authorized dealer while resident in Nigeria buys or borrows any foreign currency outside Nigeria from or sells or lends any foreign currency to any person other than an authorized dealer;
f) Without the permission of the appropriate authority:
(i) transfers any security or creates or transfers any interest in a security to or in favour of a person resident outside Nigeria; (ii) transfers any security from a register in Nigeria to a register outside Nigeria or does any act which is calculated to secure, or forms part of a series of acts which together are calculated to secure, the substitution for any security which is either in or registered in Nigeria of any security which is either outside or registered outside Nigeria; or
(iii) issues whether in Nigeria or elsewhere any security which is registered or to be registered in Nigeria to a person resident outside Nigeria; or
(iv) acquires or disposes any foreign security.
g) Counterfeits or falsifies any document which is required for obtaining any permission under the Act or which is used for the transaction of any business connected with the obtaining of any such permission;
h) Knowingly accepts, receives or uses any document to which paragraph (g) at this subsection relates;
i) Counterfeits any seal, signature, initials or other mark of or used by any officer for the verification of any document to which paragraph (g) of this subsection relates; or
j) Alters any document to which paragraph (g) of this subsection relates after it has been officially issued;
k) Does any other act which is prohibited under the Act.29 Lastly, the Special Appeal Tribunal created under the Recovery of Public Property (Special Military Tribunal) Act has its jurisdiction clearly set out in S.16(1) of the Act. It has jurisdiction to hear and determine appeals from the decisions of the Tribunals set up under the following enactments:
a. the Recovery of Public Property (Special Military Tribunals) Act;
b. the Exchange Control (Anti-sabotage) Act;
c. the Special Tribunal (miscellaneous offenses) Act; and
d. the Counterfeit Currency (Special Provisions) Act as amended.
Having gone through the jurisdictions of the various of Tribunals, our next task is to inquire whether the composition of the Tribunals has any relationship with the jurisdiction conferred. A close look at the composition of the various Tribunals indicated that there was no reflection of specialized knowledge amongst the members. Though serving or retired, judicial officers were to be chairmen in the various Tribunals the nonprofessionals especially members of the Armed Forces and the Nigerian police were in the majority. We could not get the information whether members of the Armed Forces and police were appointed on the grounds of specialized knowledge in the areas covered by the jurisdiction of the Tribunals. Our feeling is that it is very unlikely that such efforts were made.
In view of the above, we hasten to conclude the specialization which is the most significant hallmark of policy-oriented Tribunals in the United Kingdom31 is absent in the Nigerian counterpart especially the Tribunals covered in this paper.
It also follows that the case for the use of Tribunals because of its perceived advantages over regular courts is not made our convincingly in Nigerian context. It is our considered opinion that if our courts are adequately equipped and manned the use of Tribunals would be drastically reduced.
We have looked at the various meanings of the word jurisdiction, we selected five Tribunals for closer examination of their jurisdictions. We looked at the reasons behind their creation. After examining the composition of the various Tribunals selected we came to the unmistakable conclusion that expertise in the areas covered by the jurisdiction of the selected Tribunals was not the overriding factor in the appointment of its members and consequently specialization which is the hallmark of policy-oriented Tribunals was absent.