Tribunals

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TRIBUNALS.

(44) ADMINISTRATIVE TRIBUNAL

Can principles of fair hearing be binding on administrative Tribunals?

“Thus inPrince Yahaya Adigun & Ors. v. The Attorney-General of Oyo State(1987) 11 N.W.L.R.

(Pt. 53) 678at 682, the Supreme Court had held as follows: - “An administrative Tribunal is bound

to observe the rules of natural justice. The fact that it is an administrative Tribunal does not exempt

it from observing the principles ofaudi alteram partem and nemojudex incausa suaenshrined in

the rules of natural justice. The principles constitute the bastion of fairness and are equally

enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979.” – Per

Alagoa, J.C.A., in Agbi v. Ogbeh Suit No. CA/A/173/2004; (2005) 8 N.W.L.R. (Pt. 926) 40 at 139.

Duty on administrative Tribunal or investigation panel to observe rules of natural justice.

“An administrative Tribunal or investigation panel is bound to observe the principles of audi

alteram partem and nemo judex in causa suaenshrined in the rules of natural justice. SeeAgbi v.

Ogbeh(2005) 3N.W.L.R. (Pt. 926) 40; Bamaiyi v. Bamaiyi(2005) 15N.W.L.R. (Pt. 948)

334; Adigun v. A.-G., Oyo State(1987) 2 N.W.L.R. (Pt. 56) 197. In the circumstances, the

argument of the respondents that the prosecutors stayed behind only but were not part of the

management meeting is of no moment. The prosecutors may not have been part of the deliberations

of the panel, but would an objective man think in a situation where an accused was asked to leave

a room and his prosecutors stayed behind with the panel that eventually gives an adverse decision

against him that justice has been done in the case. A shadow of doubt is created even if the person

or the panel have a high level of integrity. Clearly, the presence of the prosecutors at the

deliberations with the panel members offends against the principle of natural justice that justice

must not only be done but must be manifested seen to be done. SeeEsiaga v. University of

Calabar(2004) All F.W.L.R. (Pt. 206) 381; (2004) 7N.W.L.R. (Pt. 872) 366 and University of

Uyo v. Essel(2006) All All F.W.L.R. (Pt. 315) 80.” – Per Abba-Aji, J.C.A., in Tamti v. N.C.S.B.

Suit No. CA/A/183/06; (2009) 7 N.W.L.R. (Pt. 1141) 631 at 651 – 652.

(45) ARBITRAL TRIBUNAL

Can decision of arbitral Tribunal to sit in London constitutes misconduct?

(1) “It is also my view that the power or discretion of the arbitrator to go abroad to hear evidence

from witnesses etc, etc is very wide and general and therefore not limited to where the witness is

a fugitive offender; in fact the fact that one of the witnesses to be heard in London is a fugitive

offender is not relevant. I fail to see how the decision of the arbitrator, who is the 2nd respondent

in this appeal, to go to London in the circumstances can be said to constitute a misconduct as

argued by learned senior counsel for the appellant. There is, unfortunately, no evidence at all in

support of that sweeping allegation.” – PerOnnoghen, J.S.C., in NNPC v. Lutin Invest Ltd. In Suit

No. S.C. 57/2002; (2006) 2 N.W.L.R. (Pt. 965) 506 at 534 – 535.

(2) “Surely and certainly, by the 2ndrespondent deciding (as he was entitled to do by statute and

thus had both the power/discretion and jurisdiction in this/that regard) to take a witness and some

other witnesses outside Nigeria, it cannot and could not, in my humble but firm view, constitute a

misconduct as was even orally submitted to this Court by the learned S.A.N. The application for

his removal just because he exercised (rightly in my view), the discretion conferred on him by

statute was most discourteous of and an insult to the 2ndrespondent to say the least. Speaking for

myself, the mere suggestion/application that he be removed because of an unfounded/ baseless

allegation of “misconduct”, in my respectful but firm view, was/is an infradig on the part of the

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appellant and Asemota, Esq., (S.A.N.). It is rather distasteful to any reasonable person to think of

it.” – PerOgbuagu, J.S.C., in NNPC v. Lutin Invest Ltd.In Suit No. S.C. 57/2002; (2006) 2

N.W.L.R. (Pt. 965) 506 at 542.

Source of jurisdiction of an arbitral Tribunal.

“The parties to an agreement are autonomous. The jurisdiction of an arbitral Tribunal derives

from the consent of the parties.” – Per Akinbami, J.C.A., in Statoil (Nig.) Ltd. v. N.N.P.C. Suit

No. CA/L/758/12; (2013) 14 N.W.L.R. (Pt. 1373) 1 at 29.

Who determines or decides place of arbitral proceedings and place of its meeting?

(1) “According to subsection (1) of S. 16 above, the arbitral Tribunal has the full powers to determine or

decide the place where the arbitration proceedings shall take place unless the parties have themselves

earlier agreed on where the proceedings shall take place. Subsection (2) of S. 16 opened with the words

“Notwithstanding the provisions of subsection (1).” The word or expression “Notwithstanding” is a term

of exclusion in legal drafting; it simply mean “inspite of or irrespective of or disregarding”. Therefore it

means that inspite of the provisions of subsection (1) of s. 16, and unless the parties have agreed, the rest

of the provisions of subsection (2) shall apply. See for exampleOlatunbosun v. N.I.S.E.R.(1988)

3 N.W.L.R. (Pt. 80) 25; Kotoye v. Saraki(1994) 7N.W.L.R. (Pt. 357) 414. And the rest of the

subsection gives arbitral Tribunal the power to meet “at any place it considers appropriate” for any of the

purposes set out therein, and “any place” is not restricted to Nigeria only. It appears clearly to me that

the most important factor in determining the place of arbitral proceedings according to S. 16(1) and (2)

above, is the agreement of the parties before coming to arbitration. This must be contained in the

agreement entered into between the parties giving rise to the arbitration. By clause 12 of the agreement

dated 23rdDecember, 1992, the parties agreed that: “(a) Any dispute arising out of this agreement which

cannotbe settled by mutual agreement shall be referred to an arbitrator to be agreed between theparties

or failing such agreement, to an arbitrator appointed by the Chief Justice of the Federal Republic of

Nigeria, on application of either party to him; (b) Any reference shall be deemed to be a submission to

arbitration within the Arbitration Act Cap. 19 of Laws of Nigeria 1990 or any subsequent revisions thereto;

(c) The findings of the arbitrator shall be binding on the parties hereto.” It is abundantly clear that the

parties have agreed to be bound by the provisions of the Arbitration Act, 1990 of the Federal

Republic of Nigeria and any revision thereto, and so, S. 16(1) and (2) above applied to the

arbitration proceedings in this case.” – PerKalgo, J.S.C., in NNPC v. Lutin Invest Ltd.in Suit No.

S.C. 57/2002; (2006) 2 N.W.L.R. (Pt. 965) 506 at 529 – 530.

(2) “By subsection (1) of section 16 of the said Act, the arbitral Tribunal has the power to determine

the place of the arbitral proceedings except where the parties agreed on a place and subsection (2)

of section 16 of the same Act says that excluding or inspite or irrespective of the provisions of

subsection (1), the arbitral Tribunal may still meet at a place it considers appropriate for

consultation among its members, for hearing witnesses, experts or the parties, or for the inspection

of documents, goods or other property. It appears to me that S. 16 of the Act deals with two types

of situations in the arbitral proceedings. Subsection (1) deals with determining or deciding the

place where the arbitration shall take place and subsection (2) deals with the place where the

arbitral Tribunal may meet for the purposes set out in that subsection such as hearing evidence of

the parties, their witnesses or the inspection of goods or documents relevant to the arbitration. I

have carefully examined the agreement entered into by the parties on pp. 272-278 of the record,

and I am satisfied that no where in any clause of the agreement did the parties agree on the place

of the arbitral proceedings or where the Tribunal shall meet. They however agreed to be bound by

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the laws in force in Nigeria to govern their relationships.” – PerKalgo, J.S.C., in NNPC v. Lutin

Invest Ltd. in Suit No. S.C. 57/2002; (2006) 2 N.W.L.R. (Pt. 965) 506 at 530.

(46) CODE OF CONDUCT TRIBUNAL

Are proceedings of the Code of Conduct Tribunal criminal proceedings?

“When the provisions of the Code of Conduct Bureau and Tribunal Act, 2004 are read together

with the Rules contained in the Third Schedule thereto, it is very clear that the words, phrases and

terminologies used by the legislature are words, phrases and terminologies used for and in criminal

proceedings or trials.” – Per Adumein, J.C.A., in Saraki v. F.R.N. Suit No. CA/A/551C/2015;

(2016) 2 N.W.L.R. (Pt. 1495) 25 at 60.

Are sanctions Code of Conduct can impose purely Administrative?

“Clearly therefore, there are administrative and criminal sanctions. Is it correct to say that the

sanctions the Code of Conduct Tribunal can impose are purely administrative, if so why are the

provisions of the Code of Conduct Bureau and Tribunal Act and paragraph 18 of the 5th Schedule

to the 1999 Constitution, (as amended) replete with unambiguous terms and expressions indicating

that the proceeding before the said Code of Conduct Tribunal are criminal in nature? The terms

and expressions used in the above legislations includearrest, arraignment, the charge, plea,

prosecution, conviction, guilty, sentence, prerogative of mercy, etc. See sections 23, 24 of the Code

of Conduct Bureau and Tribunal Act; paragraph 18 of the 5thSchedule in the 1999 Constitution,

(as amended); paragraphs 3, 4 and Forms 3, 4, 6, 7, 8 and 9 of the Third (3rd) Schedule to the Code

of Conduct Bureau and Tribunal Act. Finally, paragraph 17 of the 3rdSchedule to the Code of

Conduct Bureau and Tribunal Act empowers the tribunal to apply the provisions of the Criminal

Procedure Act or Code in the conduct of its proceedings in the “trial of offences generally.” With

the repeal of the CriminalProcedure Act and Criminal Procedure Code, section 493 of the

Administration of Criminal Justice Act, 2015, has taken their place. The 3rd Schedule to the Code

of Conduct Bureau and Tribunal Act is actually headed “Code of Conduct Tribunal Rules of

Procedure” and is sub-divided as follows: (1) Institution of proceedings. (2) Order on an accused

to appear. (3) Commencement of trial. (4) Plea of not guilty or no plea; (5) Presentation of case

for prosecution. (6) Procedure after presentation of evidence by the prosecutor; (7) Defence, etc.

From the totality of the provisions it is my view that it is clear that the intention of the legislature

is to make the proceedings of the Tribunal criminal proceeding to be regulated by criminal

procedure.”- Per Onnoghen, J.S.C., in Saraki v. F.R.N. Suit No. S.C. 852/2015; (2016) 3 N.W.L.R.

(Pt. 1500) 531 at 578 – 579.

Can Code of Conduct Tribunal compel appearance before it by bench warrant?

(1) “I hold the strong view that as a Tribunal with quasi-criminal jurisdiction with authority to be

guided by the Criminal Procedure Act or Code in the conduct of its proceedings, it can legally

issue bench warrant for the purpose of carrying out its quasi-criminal jurisdiction. I should not be

understood as saying that the Code of Conduct Tribunal is a Court of superior record or jurisdiction

with relevant inherent powers and sanctions but that as a quasi-criminal Tribunal/Court, it has the

necessary powers to put into effect its mandate of ensuring accountability, probity, transparency

etc of public officers in public office.”- Per Onnoghen, J.S.C., in Saraki v. F.R.N. Suit No. S.C.

852/2015; (2016) 3 N.W.L.R. (Pt. 1500) 531 at 579.

(2) “The learned appellant’s senior counsel’s stance is that the Tribunal has no power to issue

bench warrant because it has no criminal jurisdiction since it cannot impose any punishment. I do