FRN v. ALKALI & ANOR

CITATION: (2018) LPELR-45237(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON WEDNESDAY, 11TH JULY, 2018Suit No: CA/S/179C/2017

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenFEDERAL REPUBLIC OF NIGERIA - Appellant(s)

And1. ALH. TUKUR ALKALI2. ALH. BELLO ISA - Respondent(s)

RATIO DECIDENDI

(201

8) LP

ELR-45

237(

CA)

1. CONSTITUTIONAL LAW - POWER(S) OF STATE GOVERNOR: Whether the Governor of a State can exercise his power of pardon where there had been no conviction"At the core of the very issues in this Appeal is the question of the proper interpretation of the powers of the Governor of a State under Section 212(1) (a) of the Constitutionof Nigeria, 1999 as Amended. The Appellant had contended that it would be wrongful of the Governor to exercise its powers in granting a pardon where there had been noconviction recorded in respect of a criminal offence, because according to learned Appellant's Counsel, a person who is yet to be convicted is presumed innocent until thecontrary is proved. The learned Respondent's Counsel on the other hand had put up a contrary argument as he contended that the power of pardon extends to every offenceknown to law and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.This has been the focal point of the issues nominated for the determination of this Appeal.In the instant Appeal, the Governor of Sokoto State, North-West Nigeria, the Rt. Hon. AMINU WAZIRI TAMBUWAL CFR, pursuant to an Instrument of Pardon dated the 29th dayof September, 2016 had exercised his Constitutional powers under Section 212(1) (a) of the Constitution of Nigeria, 1999 in granting pardon to the Respondents herein at atime when they were undergoing trial and under circumstances in which they were yet to be convicted by the Court below.Before the exercise of the said powers of pardon, the Respondents were standing trial before the Court below on a-One Hundred and Forty-Four (144) counts AmendedCharge dated 11th day of January, 2010 for sundry offences including conspiracy, breach of trust, receiving stolen property, all punishable under the Penal Code applicable inSokoto State of Nigeria. It would be recalled that at the Court below, trial had commenced and the Appellant's Counsel were calling their witnesses, when the Respondentsthrough their Counsel filed a motion on notice dated 4th day of April, 2017 praying the Court inter alia for an order discharging them from the charges in the case on thegrounds that they had been granted unconditional pardon by the Governor of Sokoto State. The question that should perhaps, be asked at this stage is: what does the word"Pardon" denote under the Constitution of Nigeria, 1999 as Amended?The Constitution of Nigeria, 1999 provides the power of "Pardon" under Section 175 for the President of the Federal Republic of Nigeria as follow;"1. The President may-A. grant any person concerned with or convicted of any offence created by an Act of National Assembly a pardon, either free or subject to lawful conditions;B. grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;C. substitute a less server form of punishment for any punishment imposed on that person for such an offence; orD. remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such anoffence.2. The powers of the President under Subsection (1) of this section shall be exercised by him after consultation with the Council of State.3. The President, acting in accordance with the advice of the Council of State, may exercise his power under Subsection (1) of this section in relation to persons concernedwith offences against the army, naval or air force law or convicted or sentenced by a Court-martial.In the case of the Governor of a State, the Constitution provides under Section 212, the power of pardon for offences created by any Law of a State in the following words:"1. The Governor may-A. Grant any person concerned with or convicted of any offence created by any law of a State a pardon, either free or subject to lawful conditions;B. grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;C. substitute a less severe form of punishment for any punishment imposed on that person for such an offence; orD. remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state on account of such anoffence.2. The power of the Governor under Subsection (1) of this section shall be exercised by him after consultation with such advisory Council of the State on prerogative of mercyas may be established by the Law of the State."This Court, in the case of FALAE vs. OBASANJO (NO. 2) (1999) LPELR-6585 (CA) per MUSDAPHER, JCA (as he then was) defined:"Pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands for the offence and restores the rights and theprivileges forfeited on account of the offence. See VERNECO INC v. FIDELITY CAS C. AT NEW YORK 253 LA 721, 219 SO 2D 508, 511."Also in the case of UNITED STATES v. WILSON, 32 U. S. (7 Pet) 150 (1833) at 159-60, Pardon was defined as an act of grace proceeding from the power entrusted with theexecution of the laws, which exempts the individuals, on whom, it is bestowed from the punishment the law inflicts for a crime he has committed. It is further defined as the"private", though official act of the Executive.?Under ARTICLE II Section 2 the Constitution of the United States of America, the provision is titled:"Civilian Power over Military, Cabinet, Pardon Power, Appointments", ostensibly to demonstrate the political nature of the power, which grants the Chief Executive of State apolitical duty rather than a duty of law or justice to grant acts of clemency to deserving persons under a political entity. It is for this reason that the duty to pardon is neithergrounded in nor limited by considerations of law or morality, as it is essentially one of politics and therefore never expected to be a subject of litigation in any Court of law,because of its discretionary nature.In the case of BIDDEL v. PEROVICH, 274 U. S. A. 480, 486 (1972) the act of pardon is also said to be a part of the Constitutional scheme to be exercised for the public welfarethat need not be justified or defended within the legal system so long as it is "a matter of grace".?On the question of the proper interpretation of Section 212(1)(a) 1999 Constitution, there is absolutely no doubt that there are two limbs to the category of persons who canbe beneficiaries or subject-matter of Pardon pursuant to the powers conferred on the Governor of a State under the scheme of things, which recognizes the followingcategories;1. "any person concerned with" or2. "convicted of any offence."The attitude of this Court in dealing with the issue of interpretation of Statutes is to strictly adhere to the first traditional rule of statutory construction, which dictates thatthe ordinary meanings of the words has to be adhered to in the absence of any special reasons to act otherwise. In this regard, see the words of TINDAL, C. J., in SUSSEXPEERAGE CASE (1844) CI. & FIN. 85; See also LAWAL vs. G.B. OLLIVANT (1972) 2 SC 124; ATUYEYE vs. ASHAMU (1987) 5 NWLR (PT. 49) 267 AT 353; ABIOYE vs. YAKUBU(1991) 5 NWLR (PT. 190) 130 AT 203-233-4.In responding, therefore to learned Appellant Counsel's resort to the use and application of the Ejusdem Generis canon of interpretation under circumstances, such as in thiscase in which the ordinary meanings of the words used in Section 212 (1) (a) of the 1999 Constitution of Nigeria (As amended) are plain and unambiguous, is to quickly drawattention to the fact that to be allowed to so do, is to allow violence to be done to the true meaning of Section 212(1)(a) of the Constitution and in the process, obliterate thepurpose and intention for which the makers of the law have deliberately included the word: "or" between the phrases: "any person concerned with" on the one hand and"convicted of any offence" on the other hand.In therefore, relying on the classical position here, it is important to note that the word; "or" in the provision, included by the law makers deliberately conveys a disjunctivemeaning which accords with Section 18(3) of the Interpretation Act, CAP. 123 LFN, 2004, which provides that, the word: "or" in any enactment, be construed disjunctivelyand not as implying a similarity. In the case of ALHAJI ATIKU ABUBAKAR vs. YAR'ADUA (2009) ALL FWLR (PT. 457) 1 at 76 - 86 paragraphs G - D., this Court per KATSINA-ALU,JCA (as he then was) held the view that;"The word "or" is defined in Black's Law Dictionary, 6th Edition, in the following terms: A disjunctive participle used to express an alternative or to give a choice of one amongtwo or more things."Against the backdrop of this position, I simply find myself unable to disagree with the arguments of the Respondent's Counsel that the expressions: "any person concernedwith" or "convicted of any offence" used in Section 212 (1)(a) of the Constitution of Nigeria, 1999 as Amended are not distinct and separate clauses. I am therefore also inagreement with learned Respondent's Counsel, that the authorities cited and relied upon by learned Appellant's Counsel are clearly related to the second limb of Section 212(1)(a) of the 1999 Constitution, dealing with situations where beneficiaries must have been "convicted of any offence", before they are granted the pardon of the StateGovernor. What this means in essence therefore, is that learned Appellant's Counsel Submissions due to reasons best known to Counsel have failed to address the first limbof the Constitutional provision dealing with the expression: "any person concerned with".?It would equally be recalled that in arguing this issue, learned Appellant's Counsel made a heavy weather arguing that the power of pardon cannot be exercised where aconviction had not been handed down, and by so doing stringed-up together a number of interesting arguments tending in the process to forget that the exercise of thepower of pardon in the hands of the Chief Executive of a State is a political contrivance, which is rarely limited by legal considerations except where there are obvious anddeliberate failures to adhere to clearly stated guidelines on the issues, which students and scholars of the Nigerian Constitution would readily admit are clearly none existent.A careful and calm reading of both Sections 175 and 212 in this connection, which provides for the Constitutional powers of pardon, contain no such things as procedures,steps and requirements, thus giving the Nigerian President or State Governor respectively, more space to manoeuver in his exercise of his power to grant a pardon.However, in the wake of an obvious dearth in judicial pronouncements on the subject in the political space called Nigeria, learned Respondent's Counsel cited the case ofEXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 - 6 at Page 300, where the United States Supreme Court had this to say onthe subject; "Pardon power extends to every offence known to law, and may be exercised at any time after its commission, either before legal proceedings are taken, orduring their pendency or after conviction and judgment."(Under lined, mine for emphasis)The effect of a pardon, as expressed by JUSTICE FIELD in the said case in which Garland, an Attorney, had been pardoned by President Andrew Johnson for offencescommitted during the civil war, is that:"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full it releases the punishment and blots out ofexistence the guilt so that in the eyes of the law the offender is as innocent as if [sic] he had never committed the offence. If granted before conviction, it prevents any of thepenalties and disabilities consequent upon conviction from attaching. If granted after conviction it removes the penalties and disabilities and restores to him all his civilrights."(Underline is mine for emphasis).Apart from the fact that the above position puts it beyond further disputations about whether a conviction has to be a prerequisite for the proper exercise of the power ofpardon or not, learned Respondent's Counsel also raised an interesting argument on the issue where he resorted to the BLACK'S LAW DICTIONARY, EIGHT EDITION in definingthe word "pardon", which he said accorded with/or is in harmony with Section 212(1)(a) of the 1999 Constitution. In his words: "Punishment" obviously pertains to/is relativeto "conviction", which is a condition precedent to punishment and that the expression: "other legal consequences of a crime" cannot by any stretch of imagination be said tohave any nexus with "conviction".In this connection, I am in agreement with the learned Respondent's Counsel that the "other legal consequences of a crime" as contemplated by the Constitutional provisioncould include 'criminal prosecution', which normally ensues after the commission of a crime more so when the act of pardon is in general, an act of forgiving a crime andnullifying punishment or other legal consequences of a crime such as legal prosecution as in the instant appeal."Per OHO, J.C.A. (Pp. 47-58, Paras. B-F) - read in context

(201

8) LP

ELR-45

237(

CA)

2. CONSTITUTIONAL LAW - POWER(S) OF STATE GOVERNOR: Whether the Governor of a State can exercise his power of pardon where there had been no conviction"In the instant appeal, the Governor of Sokoto State of Nigeria, the Rt. Hon. Aminu Waziri Tambuwal CFR, Pursuant to an instrument of pardon dated the 29th day ofSeptember, 2016 has granted pardon to the respondents herein at a time when they were undergoing trial and in which they were yet to be convicted by the Court below.Thus, the core issue for determination in this appeal is the proper construction and or interpretation of the powers of the Governor of a State under Section 212 (1) of theConstitution of the Federal Republic of Nigeria, 1999 (as amended). The relevant provisions of Section 212 (1) provides:"212 (1) The Governor may-(a) grant any person concerned with or convicted of any offence created by any law of a state a pardon either free or subject to lawful conditions.(b) Grant to any person a respite, either for an indefinite or for a specified period of the execution of any punishment imposed on that person for such an offence;(c) Substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or(d) Remit the whole or any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state on account of such an offence.(e) The power of the Governor under Subsection (1) of this Section shall be exercised by him after consultation with such advisory council of the state on prerogative ofmercy as may be established by the law of the state."?Pardon is the act or an instance of officially nullifying punishment or other legal consequences of a crime.Therefore, pardon is usually granted by the Chief Executive of a Government. The President has the sole power to issue pardon for Federal Offences, and State governorshave the power to issue pardon for State crimes which are also termed as "executive pardon." The term pardon is first found in early French law latin perdonare ("to grantfreely"), suggesting a gift bestowed by the sovereign. It has thus come to be associated with a somewhat personal concession by a head of State to the perpetrator of anoffence in mitigation or remission of the full punishment that he has merited.According to Dicey, in the introduction to the study of the Law of the Constitution, 10th Edition 1959 a pardon is the residue of discretionary or arbitrary authority which atany given time is legally left in the hands of the crown. Prior to the seventeenth century, the English Monarch's power to pardon was absolute. His royal prerogative was assecret to him as the "right of Englishmen" were to the individual; so sacred in fact, that not even the king could diminish the royal tradition. Subsequently, prerogative ofmercy came into effect in Nigeria through statute of general application and the concept remain an integral part of the Nigeria legal history.I have earlier reproduced the provisions of Section 212 of the 1999, Constitution which is similar with Section 175 thereof as regard the power of the president to grantpardon.The instrument of pardon giving rise to this appeal is Exhibit "A" annexed to the motion on a notice filed on 6/4/2017 at page 90 of the record of appeal which read asfollows:"CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA SOKOTO STATE OF NIGERIASOKOTO STATE LEGAL NOTICE .........2016.In the exercise of the powers vested in me under Section 212 of the Constitution of the Federal Republic of Nigeria 1999, as amended and all other powers enabling me inthat behalf I, Aminu Waziri Tambuwal, Governor Sokoto State, do hereby grant an unconditional pardon to the persons listed in the schedule to this legal notice.SCHEDULENamei. Alhaji Umaru Kwabo A. A.ii. Alhaji Habibu Halilu Modachi Ahmad'siii. Hon. Muhammadu Maigariiv. Alhaji Isah Sadiq Acidav. Alhaji Muhammadu Tukur Alkalivi. Alhaji Bello IsahNATURE OF PARDONThe indictment by the Report of Alhaji Muhammad Aminu Commission of Inquiry and the Government White paper dated 28th October, 2009 and six (6) of them areconcerned with arising from the report and white paper and criminal offence they might have been accused of against the law of Sokoto State.Dated 29th day of September, 2016.SignRT. HON. AMINU WAZIRI TAMBUWAL CFR(MUTAWALLEN SOKOTO)GOVERNOR SOKOTO STATE."Learned appellant's counsel submitted that in the light of the applicable Section 212 (1) of the 1999 Constitution, a person who has not been tried and convicted by acompetent Court for an offence cannot be pardoned. He referred to SOLOLA V. STATE (2005) 2 NWLR (Prt. 937) 460 at 488 - 489 and OKONGWU V. STATE (1986) 5 NWLR(Prt. 44) 741 at 750.Still in argument, learned counsel submitted that the nature of the pardon as contained in Exhibit "A" is ambiguous and is not wide enough to cover any criminal offencesagainst the laws of Sokoto State.Learned counsel for the respondents on his part referred to Article II, Section 2 of the United States Constitution as well as the case of EXPARTE A. H. GARLAND (1865) U.S.SUPREME COURT REPORTS in contending that the power of pardon extends to every offence known to law which may be exercised at any time after its commission eitherbefore legal proceedings are taken or during their pendency or after conviction and judgment.It is pertinent to stress here that prerogative of mercy is clearly distinguishable with other prerogatives such as amnesty, condonation and nolle Prosequi. Although they areall legal apparatus used at one point or the other in criminal matters and exercised by the executive arm of government, they are not the same. "Amnesty" is an act of thesovereign power granting oblivion, or a general pardon, for a past offence, as to the subject concerned in an insurrection. Thus, it is an official statement allowing people whohave been put in prison for crimes against the state to go free. See ADEOLA V. STATE (2017) LPELR - 42327 (CA) "Condonation" is the voluntary overlooking and impliedforgiveness by treating offender as if the offence had not been committed. See NIGERIAN ARMY V. AMINU KANO (2010) LPELR - 2013 (SC). Nolle proseque has the effect ofdiscontinuance or taking over and continuing a criminal proceeding. In AUDU V. A.G. FEDERATION & ANOR (2012) LPELR - 15527 (SC) Per OGUNBIYI JSC at pages 32 - 33paras F. B. said:"On the concept of nolle prosequi, it is an exercise of power by the Attorney General of the Federation or State and which can be exercised at any stage of a criminalproceeding. Once the power is invoked it will not be subject to question either by any person or even the Court. As at the date of granting the application by the trial Courttherefore, the consequential effect of filing of nolle prosequi by both Attorney - Generals of the Kogi State and the Federation had automatically abated the criminalproceedings."Prerogative of mercy on the other hand has the effect of granting to a convict a respite or remission of punishment, pardoning, forgiving or conditionally or unconditionallywashing clean a sentenced criminal.?According to Glenn P. hastedt, an American professor pardon may be granted before or after conviction for the crime depending on the laws of the jurisdiction.Amalgamating the above view alongside the standing practice in the United States of America as evidenced in several cases including that of President Richard Nixon, onecan safely conclude that an executive pardon may be granted during criminal proceedings and not necessarily after conviction. However, the Supreme Court in Nigeria whileconsidering the power of the president to grant pardon under Section 175 (1) of the 1999 Constitution which is similar in all respect with Section 212 of the said Constitutionin the case of SOLOLA V. STATE (2005) 5 SC (Prt 1) 143 Per, Edozie, JSC at page 147 paras 20 - 30 said:"It needs to be stressed for future guidance that a person convicted for murder and sentenced to death by a High Court and whose appeal is dismissed by the Court ofAppeal is deemed to have lodged a further appeal to this Court and until that appeal is finally determined, the Head of state or the Governor of a state cannot, pursuant toSection 175 or Section 212 of the Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person.In the same vein, such person cannot be executed before his appeal is disposed of. It is hoped that the prison authorities will be guided by this advise."On his part, Belgore, JSC (as he then was) at page 47 paras 36 - 45 said:-"The three accused persons convicted and whose appeal was dismissed by the Court of Appeal were normally expected to be all before this Court on Appeal. But that wasnot to be as we are told the third accused was pardoned. We heard this only from the Solicitor General of Ogun State speaking from the Bar. The third accused was thearrow-head of the conspiracy leading to the murder of the victim and I am disturbed at this development. The principal accused who led the conspiracy and supervised themurder of the poor infant hunchback has been let loose. The murder, no doubt was a ritual one. The rules as to grant of prerogative of mercy must be re-examined."In the light of all that I have been saying, the law must be set in motion for it to arrive at its terminus. In other words, prerogative of mercy as a legal concept cannot in myrespectful view be set in motion unless and until there is a sentence of Court on a convicted person(s) which the mercy will act as a vehicle of mitigating or waiving thepunishment. Where as in the instant case, the respondents' trial was on going, there cannot be a pardon granted to the respondents by the Governor of Sokoto Statepursuant to Section 212 of the 1999 Constitution. As corollary to the above, the instrument of pardon in the instant case Exhibit "A" must be precise and tide to a particularoffence or offences and can never be at large. I dare say that the said instrument of pardon has no nexus with the offences charged even though same was purportedlymade while the trial on the one hundred and forty four counts charge was pending against the respondents. The instrument of pardon is to say the least vague; impreciseand clearly ambiguous."(DISSENTING)Per SHUAIBU, J.C.A. (Pp. 60-69, Paras. D-D) - read in context

(201

8) LP

ELR-45

237(

CA)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the ruling

of the High Court of Sokoto State sitting at Sokoto Coram:

ABBAS BELLO, J. delivered on the 29th day of June, 2017

wherein the Court discharged the Respondents of the

charges against them in case no. SS/33C/2009 on grounds

that they have been granted unconditional pardon by the

Governor of Sokoto, Rt. Hon. AMINU WAZIRI TAMBUWAL

CFR pursuant to an instrument of pardon dated 29th day of

September, 2016 (i.e. Exhibit A).

The Respondents alongside others were standing trial

before the Court by virtue of a one hundred and forty-four

count Amended Charge dated 11th day of January, 2010 for

sundry offences including conspiracy, breach of trust,

receiving stolen property, all punishable under the Penal

Code applicable in Sokoto State of Nigeria. The 1st

Respondent was charged in 112 counts; while the 2nd

Respondent was charge in counts 13 to 138, 141-143. (See

pages 7-81 of the Record of Appeal). The trial had

commenced hearing and the Appellant's Counsel were

calling their witnesses, when the Respondents through

their Counsel filed a motion on notice

1

(201

8) LP

ELR-45

237(

CA)

dated 4th day of April, 2017 praying the Court inter alia for

an order discharging them from the charges in the case on

grounds that they had been granted unconditional pardon

by the Governor of Sokoto State. (See pages 84 - 90 of the

Record of Appeal). The Appellant's Counsel in opposition to

the Respondents' motion on notice filed a counter affidavit

sworn to on the 28th day of April, 2017. (See pages 91-93

of the Record of Appeal).

The motion on notice was argued on the 25th of May, 2017

by Counsel to the parties. (See pages 94 to 100 of the

Record of Appeal). The Court delivered its ruling on the

29th of June, 2017 granting the prayers of the Respondents

and discharged them from the charges against them in the

case on grounds that they had been granted unconditional

pardon by the Governor, pursuant to an instrument of

pardon dated 29th day of September, 2016 (i.e. Exhibit A).

(See pages 101-110 of the Record of Appeal).

Dissatisfied with the ruling of the Court, the Appellant has

Appealed to this Court vide a Notice of Appeal filed on the

22nd day of September, 2017. (See pages 111 to 117 of the

Record of Appeal).

2

(201

8) LP

ELR-45

237(

CA)

Pursuant to the leave of Court granted on 29th January,

2018 the Appellant on 1st February, 2018 filed an Amended

Notice of Appeal dated 15th January, 2018. There are four

grounds of Appeal filed, which are reproduced here along

with their particulars as follows:

GROUNDS OF APPEAL:

1. The learned trial Court erred in law when it held that:

“In the result therefore, an Order is hereby made

discharging the Accused/Applicants namely ALH. TUKUR

ALKALI AND BELLO from the charge in Case No.

SS/33C/2009 pending before this Court, having been

granted unconditional State pardon by the Governor of

Sokoto State, pursuant to Section 212 of the 1999

Constitution of the Federal Republic of Nigeria (as

amended)."

PARTICULARS OF ERROR

i. The Respondents (i.e. Defendants/Applicants) trial were

still ongoing and they had not been convicted of any

offence before the Governor of Sokoto State Rt. Hon.

Aminu Waziri Tambuwal CFR purportedly granted them

pardon by Exhibit A, the instrument of pardon, in the

purported exercise of powers conferred on him under

Section 212(1) (a) of the Constitution of the Federal

Republic of Nigeria, 1999.

3

(201

8) LP

ELR-45

237(

CA)

ii. There must be a conviction before a person is pardoned

for a criminal offence, and the Respondents had not been

convicted of any offence as at the time the Governor of

Sokoto State purported to have granted them pardon by

Exhibit A.

iii. A person cannot be said to have committed or been

convicted of an offence if he has not been found guilty of

that offence by a Court of competent jurisdiction because

every person charged with committing an offence is

presumed to be innocent until he is proved guilty.

iv. It is contrary to the principle of presumption of

innocence enshrined under Section 36(5) of the 1999

Constitution to purport to pardon a person for a criminal

offence when he has not been convicted of the offence by a

competent Court.

v. The provision of Section 212(1) (a) of the Constitution is

inapplicable in the circumstances of this case.

vi. The Governor of a State can only exercise his power of

prerogative of mercy in relation to person who has been

proven to have committed or convicted of a State offence

by a Court of competent jurisdiction and not otherwise.

2. The trial Court erred in law when it proceeded to

discharge the Respondents on the grounds that they

4

(201

8) LP

ELR-45

237(

CA)

have been granted unconditional pardon for the offences

for which they were facing trial in charge no. SS/33C/2009

despite the fact that the instrument of Pardon Exhibit A

showed that the Governor of Sokoto State did not comply

with the mandatory provision of Section 212(2) of the 1999

Constitution.

PARTICULARS OF ERROR:

i. Section 212(2) of the 1999 Constitution provides a

condition precedent before the Governor of a State can

exercise the power to grant pardon or exercise the power

of prerogative of mercy under Section 212(1).

ii. The condition precedent to the exercise of the power

under Section 212 (1) is that the Governor shall consult

with advisory council of the State on the Prerogative of

Mercy before exercising the power.

iii. The Instrument of pardon, Exhibit A shows that the

mandatory requirement of Section 212(2) of the

Constitution was not complied with by the Governor of

Sokoto State in the instant case. Being a condition

precedent, the said requirement must be expressly shown

to have been complied with.

iv. Where legislation (in this case, the Constitution) has laid

down a procedure for doing a thing, such a thing cannot

5

(201

8) LP

ELR-45

237(

CA)

be done by any means other than the one so laid down.

v. The essence of Subsection (2) of Section 212 of the

Constitution is to ensure that the Governor is properly

guided and the balance between the interest of the

individual concerned and that of the public is properly

maintained.

3. The trial Court erred in law and on the facts when it held

that:

"On careful consideration of the submissions of both

Counsel regard being heard to the affidavit evidence placed

before this Court and by interpreting the word "and" to

mean in addition to, used in Exhibit A it is a matter of

giving effect therefore to the pardon granted by the

Governor as contended (sic) in Exhibit A regard being had

to the Constitutional provisions of Section 212 (1) (a) of the

Constitution of the Federal Republic of Nigeria 1999 (as

amended) and the fact that the legality of the pardon is not

questioned by the Complainant/Respondent. The

application is meritorious and therefore is hereby granted

accordingly."

PARTICULARS:

i. Exhibit A dated 29th of September, 2017 which is the

instrument of pardon under the hand of the Governor of

Sokoto State, RT. Hon. Aminu Waziri

6

(201

8) LP

ELR-45

237(

CA)

Tambuwal CFR did not make reference to the pending

charge no: SS/33c/2009, which was filed since 2009.

ii. The Governor of Sokoto State was aware or deemed to

be aware of the pendency of the charge no: SS/33C/2009 as

at the time he issued Exhibit A.

iii. If the Governor of Sokoto State had intended the pardon

to extend to the pending charge no: SS/33C/2009 he would

have specifically and expressly stated so by reference to it

in Exhibit A.

iv. The Respondents failed to prove that the pardon

purportedly granted to them by the Governor of Sokoto

State was connected to the case for which they were

standing trial despite the fact that the Appellant joined

issues with them on that point.

v. The counts of the charge on which the Respondents were

charged did not make reference to any indictment of the

Respondents by the Report of Alhaji Muhammad Aminu

Ahmed's Commission of Inquiry and the Government White

Paper dated 28th October, 2009 referred to as Exhibit A.

vi. The Appellant deposed in paragraph 4 of its counter

Affidavit that the trial of the Respondents in the pending

charge no: SS/33C/2009 was consequent upon the

7

(201

8) LP

ELR-45

237(

CA)

investigation conducted by operatives of the Economic and

Financial Crimes Commission (EFCC) pursuant to a written

complaint/petition received from the then Attorney-General

of Sokoto State, Inuwa Abubakar Esq., and intelligence

report gathered by the EFCC.

vii. The trial Court ought to have found that the

Respondents failed to prove that the pardon purportedly

granted to them by the Governor of Sokoto State was

connected to the case for which they were standing trial

since the Appellant joined issues with them on that point.

viii. A party cannot expressly or impliedly consent to an

action that is contrary to the intendment of the provisions

of the Constitution.

4. The learned trial Court erred in law when it held as

follows:

“The word "and" used when construed, leave no one in

doubt as to the intendment of the pardon per the

Instrument in Exhibit A.

The phrases/words "and" any criminal offence they might

have been accused of against the Laws of Sokoto State

used, the Exhibit A. Instrument has been written in simple

and clear language and wide enough in my respectful view

to accommodate the circumstances of the

8

(201

8) LP

ELR-45

237(

CA)

Accused/Applicants and that going by the definition of the

word "and" in OGUNYADE vs. OSHUNKEYE (supra) to

mean, to be added to, the pardon per Exhibit A covers or

extends to the charge before this Court being wide enough

to cover the offences in the charge pending before this

Court".

PARTICULARS:

i. By the ejusdem generis principle of interpretation or

construction the words: "and any criminal offence they

might have been accused of against the laws of Sokoto

State", means any criminal offence or charge emanating

from or connected to the indictment of the Respondents by

the Report of Alh. Muhammed Aminu Ahmad's Commission

of Inquiry and the Government White Paper dated 28th

October, 2009 and therefore exclude any other criminal

offence that did not emanate there from or connected

thereto.

ii. If the Governor of Sokoto State had intended the pardon

to extend to the pending charge no: SS/33C/2009 he would

have specifically and expressly stated so by reference to it

since he was aware or deemed to be aware of its pendency.

iii. Exhibit A was couched in ambiguous terms and

therefore required the use of the ejusdem generis canon of

construction to discern the intention of the Governor of

Sokoto State.

9

(201

8) LP

ELR-45

237(

CA)

iv. The counts of the charge against the Respondents did

not make reference to any indictment of the Respondents

by the Report of Alhaji Muhammad Aminu Ahmed's

Commission of Inquiry and the Government White Paper

dated 28th October, 2009.

v. The Appellant deposed in paragraph 4 of its counter

affidavit that the trial of the Respondents in the pending

charge no: SS/33C/2009 was consequent upon investigation

conducted by operatives of the Economic and Financial

Crimes Commission (EFCC) pursuant to a written

complaint/petition received from the then Attorney-General

of Sokoto State, Inuwa Abubakar Esq., and intelligence

report gathered by the EFCC.

ISSUES FOR DETERMINATION

Three (3) issues were nominated for the determination of

this appeal by the Appellant as follows;

1. Whether the trial Court was right when it discharged the

Respondents from the charges against them in the case no:

SS/33C/2009 on the grounds that they have been granted

unconditional pardon by the Governor of Sokoto State when

the Respondents had not been convicted of any offence by

any Court (Ground One).

10

(201

8) LP

ELR-45

237(

CA)

2. Whether the trial Court was right when it discharged the

Respondents from the charges against them in the case no:

SS/33C/2009 on the grounds that they have been granted

unconditional pardon by the Governor of Sokoto despite the

fact that the instrument of pardon, Exhibit A, clearly

showed that the Governor of Sokoto State, Rt. Hon. Aminu

Waziri Tambuwal did not comply with the condition

precedent of consulting with the advisory Council of Sokoto

State on Prerogative of Mercy under the Advisory Council

on the Prerogative of Mercy (Establishment) Cap.108 Laws

of Sokoto State of Nigeria before exercising his power to

grant pardon as required under Section 212(2) of the

Constitution of the Federal Republic of Nigeria, 1999

(Ground two).

3. Assuming without conceding that the Governor of Sokoto

State could grant pardon to the Respondents when they

had not been convicted of any offence by any Court,

whether the trial Court was right when it held that the

instrument of pardon, that is Exhibit A extended or

included the offences for which the Respondents was

standing trial, that is charge no: SS/33C/2000, when the

instrument did not specify or expressly state that the

pardon was for the said offences (Grounds three and four).

11

(201

8) LP

ELR-45

237(

CA)

On the part of the Respondent, three (3) issues were

equally nominated for the determination of this Appeal

thus;

1. Whether the trial Court was right in discharging the

Respondents from the charges against them in case no:

SS/33C/2009 on the grounds that they have been granted

unconditional pardon by the Governor of Sokoto State

(Ground One).

2. Whether it is a condition precedent for the validity of the

instrument of pardon, Exhibit ‘A’ that it is mandatory for

the GOVERNOR of Sokoto State to State on the face

thereof that he has consulted with the State Advisory

Council on the prerogative of mercy before the making

thereof (Ground two).

3. Whether the instrument of pardon is couched in wide

terms as to cover the offences the Respondents were

standing trial in case no: SS/33C/2009 (Grounds three and

four).

Upon a careful and calm consideration of the issues

nominated by both sides to the divide in this legal contest,

what seem to stand out clearly, is the fact that the

nominated issues across board are identical but for reasons

of semantics.

12

(201

8) LP

ELR-45

237(

CA)

To this end and due to reasons of comprehensiveness, the

issues nominated by the Appellant shall be the basis for the

determination of this Appeal. The Appellant’s brief of

Argument filed on the 3-4-2018 was settled by CHILE

OKOROMA ESQ., but deemed filed on the 23-5-2018 while

the Respondent’s brief of Argument filed on the 26-4-2018

and settled by S. ATUNG ESQ., but deemed filed 23-5-2018.

At the hearing of the Appeal on the 23-5-2018, learned

Counsel adopted their briefs of Argument on behalf of their

sides and urged the Court to decide the Appeal in their

favour.

SUBMISSIONS OF COUNSEL;

APPELLANT;

ISSUE ONE;

Whether the trial Court was right when it discharged

the Respondents from the charges against them in

the case no:SS/33C/2009 on the grounds that they

have been granted unconditional pardon by the

Governor of Sokoto State when the Respondents had

not been convicted of any offence by any Court

(Ground One).

In arguing this issue, learned Appellant’s Counsel

submitted that the power of the Governor of any State of

Nigeria to grant a pardon to any person concerned with or

convicted of any offence under the laws of the State is

derived from

13

(201

8) LP

ELR-45

237(

CA)

Section 212 (1) (a) of the Constitution of the Federal

Republic of Nigeria, 1999 (i.e. CFRN). Counsel reproduced

Section 212 (1) (a) of the Constitution of Nigeria, 1999 as

amended and further submitted that as at the time the

Respondents were purportedly granted pardon by the

Governor of Sokoto State and which was validated by the

Court below the Respondents had not yet been convicted of

any offence under the laws of Sokoto State as the trial of

the Respondents was still on-going.

The contention of learned Counsel therefore, is that the

fundamental questions before this Court is to determine

what the meaning of the phrase: "concerned with or

convicted of any offence" as used in Section 212(1)(a) of

the CFRN; and whether this includes a person (in this case

the respective Respondents) who were yet to be convicted

of any offence, and still standing trial for an allegation of

commission of offences created by any law of a State? It

was further contended that under Section 36(5) the

Constitution of Nigeria, 1999 a person accused of a

criminal offence is presumed innocent until proven guilty.

Counsel argued in addition, the mere accusation or

allegation of an offence

14

(201

8) LP

ELR-45

237(

CA)

does not amount to a conviction and that the accused

remains an innocent person until he is proved guilty and

convicted by a competent Court. He cited the case of

AMAECHI vs. INEC & ORS (2008) LPELR-446 page 1

at page 260 paras. B-F where the apex Court per

ADEREMI, JSC (as he then was) stated that:

“For an accusation of a criminal offence to be

successfully levied against a person, such an offence

ordinarily must be established before an impartial

Court of law. The cardinal principle here is that once

a person is accused of a crime and once the

adjudicating body is anything less than a judicial body

vested with criminal jurisdiction, the person so

subjected to that trial before that body is as good as

not having undergone any criminal trial. No matter

how well conducted the trial might be, its verdict is

null and void and can never foist a conviction or

sentence, known to law, on the person.

Perhaps I should further say that an administrative

body lacks the jurisdiction and competence to try the

issue of crime, for such a body is not a Court much

less a criminal Court. Only a Court vested with

criminal jurisdiction is competent to hear

and determine the criminality of the person accused."

15

(201

8) LP

ELR-45

237(

CA)

See also GARBA vs. UNIVERSITY OF MAIDUGURI

(1986) 1 NWLR (PT. 18) 550; 1986 (VOL. 17) NSCC

(PT. 1) 245 at 265 lines 5-50.

Counsel further submitted in the light of the foregoing, that

a person who has not been tried before and convicted by a

competent Court for an offence cannot be said to have

committed or convicted of an offence as to deserve a

pardon because an innocent person cannot be pardoned for

any offence. He argued that in effect for a person to be

“concerned with an offence” there must have been a

conviction; that is why a pardon cannot even be granted to

a person whose appeal against his conviction by a trial

Court, which has been affirmed by the Court of Appeal and

is pending at the Supreme Court. He cited in support of

this proposition, to the case of MONSURA SOLOLA &

ANOR vs. THE STATE (2005) 2 NWLR (PT. 937) 460

at 488-489 para. G-B where the apex Court per EDOZIE,

JSC, (as he then was) delivering the lead judgment, said

this concerning pardon or prerogative of mercy.

“It needs to be stressed for future guidance that a

person convicted for murder and sentenced

16

(201

8) LP

ELR-45

237(

CA)

to death by a High Court and whose appeal is

dismissed by the Court of Appeal is deemed to have

lodged a further Appeal to this Court and until that

Appeal is finally determined, the Head of State or the

Governor of a State cannot, pursuant to Sections 175

(sic) or 212 of the 1999 Constitution, as the case may

be, exercise his powers of prerogative of mercy in

favour of that person. In the same vein, such person

cannot be executed before his Appeal is disposed of.

It is hoped that the prison authorities will be guided

by this advice.”

See also OKONGWU vs. STATE (1986) 5 NWLR (PT.

44) 741 at 750 paras. G-H where the Supreme Court per

OGUNDARE, JSC (as he then was) held that:

“Pardon is usually granted where a convict has

exhausted all his legal rights of appeal, has no

intention of exercising such right; where he is

wrongfully convicted and is afterwards pardoned upon

the ground of his innocence."

Counsel also submitted that going by the ejusdem generis

canon of interpretation, the general phrase: "any person

concerned with" in Section 212(1)(a) of the CFRN means a

particular class of people convicted of any offence.

17

(201

8) LP

ELR-45

237(

CA)

According to Counsel, the canon is to the effect that wide

or general words associated in a text with more limited

words are taken to be restricted by implication to matters

of the same limited character. He also explained that where

a particular class goes with a general word, the particular

class is taken to be comprehensive and the general word is

interpreted within the context of the particular class.

It was also contended by Counsel that the provisions of the

Constitution ought to be interpreted holistically. He cited

the case of ACTION CONGRESS vs. INEC 2007 ALL

FWLR (PT. 378) 1012 at 1037) and argued that the

phrase "any person concerned with" as used in Section

212(1) (a) aforesaid should be interpreted in line or

consistently with the presumption of innocence in Section

36(5) of the same CFRN to the effect that Section 36(5)

constricts the phrase to a person who has been convicted

for an offence. By the said section he said that a narrow

interpretation is given to the provisions of the Constitution

where it will carry out the object and purpose of the

Constitution. Counsel also cited the case of SKYE BANK

PLC vs. IWU (2017) LPELR-42595.

18

(201

8) LP

ELR-45

237(

CA)

According to Counsel to do otherwise will lead to absurdity,

because "any person concerned with…an offence" if given a

wide interpretation would apart from the person who is

accused of or standing trial for an offence, mean any

person in the criminal justice chain, or who has anything to

do with regards to an offence including investigators who

are concerned with the investigation of the offence, the

prosecutors who are concerned with the prosecution of an

offence, and not to mention the judges or magistrates who

are concerned with trial of an offence.

On account of the contention of the Respondents at the trial

Court that their trial in the case no: SS/33C/2009 was as a

result of their indictment by Ahmed's Commission of

Inquiry and the Sokoto State Government White Paper

thereon; and the reference of Exhibit A to the said

Commission of Inquiry and the White Paper dated 28th

October, 2009 in the Nature of Pardon, Counsel was of the

view that it does not avail the Respondents. This, he said is

because it is only a Court that can convict a person of an

offence and not an Administrative body, and that an

indictment is not a conviction.

19

(201

8) LP

ELR-45

237(

CA)

Counsel cited the case of FALAE vs. OBASANJO (1999) 4

NWLR (PT. 599) 476 @ 495 para D-E, where this Court

per MUSDAPHER, JCA (as he then was) stated that:

"A pardon is an act of grace by the appropriate

authority which mitigates or obliterates the

punishment the law demands for the offence and

restores the rights and privileges forfeited on account

of the offence. See VERNECO INC vs. FIDELITY & CAS

C. OF NEW YORK 253 LA 721, 219 SO 2D 508, 511.

The effect of a pardon is to make the offender a new

man (novus homo), to acquit him of all corporal

penalties and forfeitures annexed to the offence

pardoned."

Counsel, therefore, argued that the Respondents who had

not been convicted of any offence as at the time the

purported pardon was granted could not be said to have

been made novus homo by Exhibit A as they were

presumed innocent until proved guilty. He further argued

that the trial Court was therefore not right when it

discharged the Respondents from the charges against them

in the case no: SS/33C/2009 on the grounds that they have

been granted unconditional pardon by the Governor of

Sokoto State. He urged this Court to so hold and resolve

this issue in favour of the Appellant.

20

(201

8) LP

ELR-45

237(

CA)

ISSUE TWO:

Whether the trial Court was right when it discharged the

Respondents from the charges against them in the case no:

SS/33C/2009 on the grounds that they have been granted

unconditional pardon by the Governor of Sokoto despite the

fact that the instrument of pardon, Exhibit A, clearly

showed that the Governor of Sokoto State, Rt. Hon. Aminu

Waziri Tambuwal did not comply with the condition

precedent of consulting with the advisory Council of Sokoto

State on Prerogative of Mercy under the Advisory Council

on the Prerogative of Mercy (Establishment) Cap.108 Laws

of Sokoto State of Nigeria before exercising his power to

grant pardon as required under Section 212(2) of the

Constitution of the Federal Republic of Nigeria, 1999

(Ground two).

In arguing this issue, learned Appellant’s Counsel referred

Court to Section 212 (2) of the Nigerian Constitution, 1999

and contended that the exercise of the power of the

Governor of a State to grant a pardon to any person

concerned or convicted for an offence under the laws of the

State is not based on his whims and caprices as the

Constitution

21

(201

8) LP

ELR-45

237(

CA)

clearly spells out the condition precedent, which he must

comply with before doing so. Counsel further contended

that the Appellant fortified in this assertion by the use of

the word: "shall" in the said provision by the framers of the

Constitution. Counsel cited the case of NATIONAL

ASSEMBLY vs. C.C.I. CO. LTD (2008) 5 NWLR (PT.

1081) 519 at P.540 paras. D - G where this per

OMOLEYE, JCA stated as follows:

“The word "shall" is a word of command and it

denotes direction, compulsion, a mandate, an

obligation and gives no room for discretion. In

whatever way it is used, whether in a mandatory or

directory sense, there has to be fulfillment of such

mandate or directive. The word "shall" make the

provision of a statute mandatory and preemptory...”

Having stated this, the poser at this juncture, according to

Counsel is whether the Governor of Sokoto State complied

with the condition precedent before issuing Exhibit A?

Counsel argued that Section 2 of the Advisory Council on

the Prerogative of Mercy Law Cap. 108 Laws of Sokoto

State, provides for the Advisory Council, which the

Governor must consult with before exercising the power

vested in him in Section 212(2) of the CFRN.

22

(201

8) LP

ELR-45

237(

CA)

He said that Exhibit A clearly shows without any ambiguity

or equivocation that the Governor of Sokoto State did not

consult with the Advisory Council of Sokoto State on the

Prerogative of Mercy as required by the law as he did not

state in the said Exhibit A that he did. Counsel cited the

case of INAKOJU vs. ADELEKE (2007) 4 NWLR (PT.

1025) 427 where Supreme Court per TOBI, JSC (OBM)

emphasized this position of the law as follows:

"It is good law that where the Constitution or a

statute provides for a pre-condition to the attainment

of a particular situation, the precondition must be

fulfilled or satisfied before the particular situation

will be said to have been attained or reached, our

common and popular pet expression is "condition

precedent" which must be unfulfilled before the

completion of the journey..."

Arising from the foregoing therefore, Counsel submitted

that since the Governor of Sokoto State did not comply with

the mandatory requirements as stipulated in Section 212(2)

of the CFRN, Exhibit A was a nullity and the trial Court was

wrong in giving effect to it and discharging the

Respondents on the grounds tha t i t ava i l ed

the Respondents.

23

(201

8) LP

ELR-45

237(

CA)

It is further argued by Counsel that it is imperative that the

Governor consults with Advisory Council on Prerogative of

Mercy before exercising his power under the said Section

212(1) of the CFRN so as to obviate the possibility of abuse

of power and effectively balance the interest of the

beneficiary of the pardon on one hand and that of the State

or the public on the other. See OKENWA vs. MILITARY

GOVERNOR, IMO STATE (1997) 6 NWLR (PT. 507)

136 at 161 paras D-E. Counsel on this issue, urged this

Court to resolve issue two in favour of the Appellant.

ISSUE THREE:

Assuming without conceding that the Governor of

Sokoto State could grant pardon to the Respondents

when they had not been convicted of any offence by

any Court, whether the trial court was right when it

held that the instrument of pardon, that is Exhibit A

extended or included the offences for which the

Respondents was standing trial, that is charge no:

SS/33C/2000, when the instrument did not specify or

expressly state that the pardon was for the said

offences (Grounds three and four).

24

(201

8) LP

ELR-45

237(

CA)

In his arguments on this issue, learned Counsel stated that

the case no. SS/33C/2009 against the Respondents and

others in the trial Court was commenced by their

arraignment on the 16th of December, 2009. (See pages 34

to 43 of the Supplementary Record of Proceedings) and

that the charge was amended by the Amended Charge

dated 11th January, 2010 (See Pages 7-81 of the Record of

Appeal).

According to Counsel, Exhibit A circumscribed the Nature

of Pardon as follows:

"NATURE OF PARDON

The Indictment by the Report of Alhaji Muhammad Aminu

Ahmad's Commission of Inquiry and the Government White

Paper dated 28th October, 2009 and six of them are hereby

granted Unconditional State Pardon for the offences they

are concerned with arising from the report and white paper

and any criminal offence they might have been accused of

against the laws of Sokoto State."

Arising from the foregoing and especially with the

contention of the learned Counsel to Respondents at the

Court below and which was upheld by the Court, where it

was argued that the words used in Exhibit A under the

“Nature of Pardon” were wide enough to cover the offences

for which the Respondents were standing trial, the

contention of

25

(201

8) LP

ELR-45

237(

CA)

Appellant’s Counsel is clearly to the contrary. Counsel

accordingly submitted that the Respondents failed to prove

that they were standing trial on account of the

recommendations of the Government White Paper and the

Report of the said Commission of Inquiry; that all the

Respondents did was to make bare depositions in

paragraph 3.1 to that effect, whereas none of the counts of

the charge before the Court below against the Respondent

(i.e. counts 4-67) made reference to any Report of the

Commission of Inquiry and/or the White Paper issued

pursuant to it. Counsel further argued that the

Respondents also did not proffer any credible evidence to

show the link between their trial in case no: SS/33C/2009

and the said Report of the Commission of Inquiry and/or

the White Paper, thereon.

It was also contended by Appellant’s Counsel that on the

contrary, the Appellant deposed in its counter affidavit at

paragraphs 4, 5 and 6 through one Reuben Omosigho, an

operative of the EFCC who was part of the team that

investigated the case that led to the charge no:

SS/33C/2009, is as a result of investigation conducted by

the operatives of EFCC sequel to a written petition

26

(201

8) LP

ELR-45

237(

CA)

received from the then Attorney General of Sokoto State in

the person of Inuwa Abdul kadir Esq., as well as on the

basis of intelligence report received by the EFCC. In

addition, that the said written complaint of Inuwa Abdul

kadir Esq., was filed before the Court below as part of the

proof of evidence and of which this Court can take judicial

notice. Furthermore, that it is not true that charge no:

SS/33C/2009 was filed against the accused/applicants as a

result of the indictment by Alhaji Muhammed Aminu

Ahmad's Commission of Injury and the White Paper issued

by Sokoto State Government in respect thereof. (See pages

91-93 of the Record of Appeal).

According to Counsel, from the depositions in the counter

affidavit of the Appellant, it is patently clear that the

Appellant effectively joined issues with the Respondents on

the basis of the charge against him, which the Court ought

to have resolved by credible evidence. But rather,

abdicated that responsibility and jumped into other

conclusions. The argument of Counsel therefore is that

where there is a failure, a commission or omission by a trial

Court in relation to an act, which the trial Court ought to

27

(201

8) LP

ELR-45

237(

CA)

do or refrain from doing, that this Court is in as good a

position as the trial Court to do or refrain from doing that

act. He further argued that where a trial Court fails to

make a finding on an issue duly joined by the parties on

their pleadings in a case, an Appellate Court will order a

retrial where the evidence/facts is/are of such a nature that

it cannot make its own findings. He cited the case of

DAKIPIRI ODI vs. HARRISON IYALA (2004) 4 SCNJ 35

AT 55-56. Counsel urged this Court to exercise its powers

under Section 15 of the Court of Appeal Act to make a

finding on this point and we urged this Court on a balance

of probabilities to hold that the Respondents failed to prove

that their trial in charge no. SS/33C/2009 was connected to

the Report of Ahmad's Commission of Inquiry and the

White Paper issued thereon referred to in Exhibit A.

On the question of whether the pardon granted is limited to

any offences or criminal proceedings against the

Respondents arising from the said Report and Government

White Paper or wide enough to cover any offences or

criminal proceedings whatsoever against the laws of Sokoto

State whether arising from the said Report

28

(201

8) LP

ELR-45

237(

CA)

and Government White Paper or not, Counsel submitted

that despite the use of the words: “and any criminal offence

they might have been accused against the Laws of Sokoto

State", Exhibit A constricted the pardon to any offences or

criminal proceedings arising from the said Report and

White Paper and no more. He argued that case no:

SS/33C/2009 was already pending in Court as at the 29th of

September, 2016 when the Governor, signed or issued

Exhibit A and that in effect, the Governor was aware or

deemed to be aware of the case and that if he had intended

the pardon to extend to the case, he would have expressly

stated that the pardon is or extends to the charges against

Respondents in the charge no: SS/33C/2009 pending in

Court. He argued that having not done so, it simply means

that his intention was that the pardon should not extend to

it.

According to Counsel, the use of the words: "and any

criminal offence they might have been accused of against

the Laws of Sokoto State", does not make the pardon wide

enough to avail the Respondents whether or not the

offences they were accused of were connected to the said

Report of the Commission of Inquiry and White Paper.

29

(201

8) LP

ELR-45

237(

CA)

He said that to give it such an interpretation would lead to

gross absurdity because it would include any conceivable

offences the Respondents might have been accused of

whether known or unknown to the Governor including

possibly, the ones that may have been undergoing

investigation; that this obviously could not have been the

intention of the Governor.

Counsel also contended that the “Nature of the Pardon” as

couched in Exhibit A is ambiguous and consequently, the

only option for eliciting or discerning the intention of the

Governor is to call to aid the ejusdem generis principle of

interpretation under which the words:"and any criminal

offence they might have been accused of against the laws

of Sokoto State", means any criminal offence or charge

emanating from the indictment of the Respondents by the

Report of Alhaji Muhammed Aminu Ahmad's commission of

inquiry and the Government white paper dated 28th

October 2009, and therefore excludes any other criminal

offence that did not emanate therefrom or connected to it.

According to Counsel, this is more so when the word: "and"

which is conjunctive in the context is used and not

30

(201

8) LP

ELR-45

237(

CA)

disjunctive as held by the trial Court. He also said that even

if the word "or" was used the tenor of context would still

make the word conjunctive, thereby narrowing the general

words to offences connected to the Report of Commission

of Inquiry and the White Paper. Counsel cited the case of

IZEDONMWEN & ANOR vs. UBN PLC. & ANOR (2011)

LPELR-4020(CA).

Counsel therefore submitted that the Nature of Pardon in

Exhibit A is limited to any offences or criminal proceedings

against the Respondents arising from the said Report and

Government White Paper, and not wide enough to cover

any offences or criminal proceedings whatsoever against

the laws of Sokoto State whether arising from the said

Report and Government White Paper or not as concluded

by the Court below. He urged this Court to resolve this

Appeal in favour of the Appellant and set aside the

judgment of the Court below.

RESPONDENT;

ISSUE ONE:

In arguing this issue, learned Respondent’s Counsel

submitted that in our jurisprudence and for which there

can hardly be any contrary argument an appeal is a

continuation of the case commenced at the trial Court.

31

(201

8) LP

ELR-45

237(

CA)

He cited the case of IJARAFU vs. DZUGU (2011) 17

NWLR [PT. 1276] Page 360 AT Page 370 paras E - F

Viz: - where the Court held that;

"An appeal is thus considered as a continuation of the

original suit before the trial Court rather than the

beginning of a new suit. Oredoyin V. Arowolo (supra);

Babalola v. State (1989) 4 NWLR [PT. 115] 264; Ngige

V. Obi (2006) 14 NWLR [PT. 999] 1."

According to Counsel, the foregoing constitutes the

jurisprudential reasoning behind the statement of the law

that a party must be consistent in stating/prosecuting his

case as he cannot by law state a different case at the Court

of Appeal, which is different from his case before the trial

Court. Counsel also cited the cases of ADEOSUN vs.

GOVERNOR OF EKITI STATE (2012) ALL FWLR [PT.

619] Page 1044 at Page 1064 paragraphs A –C; DR.

NGIGE vs. MR. OBI & ORS (2005) All FWLR [PT. 330]

Page 1041 at P. 1091 to 1092 paras C - B.

Against the backdrop of this position, Counsel pointed out

that in the instant case learned Counsel for the Appellant,

while opposing Motion No. SS/M.126/2017, which is the

subject matter of this Appeal had this to say viz: -

32

(201

8) LP

ELR-45

237(

CA)

"I am relying on all the paragraphs in the Counter-

affidavit. I adopt my arguments in the earlier

applications in Motions numbers SS/M.89/2017 and

SS/M.158/2017." (Please see page 99 of the record of

appeal).

As it relates to Motion no: SS/M.89/2017, Counsel further

pointed out that learned Counsel for the Appellant in

opposing the said motion on notice submitted inter-alia as

follows: -

" …The powers of the Governor of Sokoto State to

grant a pardon to a person concerned with or

convicted for an offence created by law of a State is

prescribed under Section 212(1)(a) of the

Constitution of the FRN as amended is not being

questioned by the Complainant/Respondent." (Please

see page 106 of the supplementary record of appeal).

According to Respondent’s Counsel, it is the foregoing

submission of learned Counsel for the Appellant inter-alia

that informed the finding of fact of the trial Court at pages

107 of the record of appeal thus: -

"My understanding of the contention of the learned

Counsel of the Complainant/Respondent is that they

conceded to the fact that, the Governor has power to

pardon but that in the circumstances of this case, the

33

(201

8) LP

ELR-45

237(

CA)

Applicants have not shown how the said pardon in

Exhibit A is relevant to the charge before this Court

as it has not been shown that the Commission of

Inquiry and the White paper formed the basis of the

trial of the Accused/Applicants in charge no:

SS/33C/2009 pending before this Court."

Arising from the foregoing finding of fact by the trial Court

learned Respondent’s Counsel argued that the concession

of the Appellant constitutes an ISSUE ESTOPPEL between

the parties herein and that for this reason, the submissions

and decided cases cited by the Appellant's Counsel would

have been more appropriate at the stage when the

Respondents moved their motion no: SS/M.126/2017 before

the trial Court. For this reason, Counsel further argued that

the Appellants are estopped from raising quite belatedly all

the arguments on whether the Governor of Sokoto State

has power to pardon the Respondents. Counsel cited the

cases of THE HONDA PLACE LTD vs. GLOBE MOTORS

LTD (2005) 14 NWLR [PT. 945] 273 at p. 297 paras D

– G; HOUSETEAD vs. COMMISSIONER OF TAXATION

[1926] AC 155 at 165; OGBOGU vs. NDIRIBE [1992] 6

NWLR [PT. 245] 40 at Pp: 67 -69 paras E - C, at Pp. 68

- 69 paras F – C.

34

(201

8) LP

ELR-45

237(

CA)

In assuming (but without conceding) that the Appellants

can at this stage challenge the powers exercised by the

Governor of Sokoto under Section 212(1)(a) 1999

Constitution, Counsel contended that this issue for

determination then brings into sharp focus the provisions of

Section 212(1)(a) of the 1999 Constitution (as amended)

and argued that the said Constitutional provision shows

clearly that there are two limbs to the category of persons

who can be beneficiaries or subject matter of pardon i.e.

"any person concerned with” or “convicted of any offence."

In his arguments on the subject, Counsel said that the use

of the word 'or' in Section 212(1)(a) by the framers of our

Constitution is deliberate to convey a disjunctive meaning,

which is in harmony with Sect ion 18(3) of the

Interpretation Act, CAP. 123 LFN, 2004, which provides

that the word "or" and the other shall, in any enactment, be

construed disjunctively and not as implying similarity."

Counsel cited the case of ABUBAKAR vs. YAR'ADUA

(2009) ALL FWLR (PT. 457) Page 1 at pages 76 - 86

paragraphs G – D.

35

(201

8) LP

ELR-45

237(

CA)

With this at the background, Counsel argued further that it

is as clear as crystal that the sentence 'any person

concerned with' or 'convicted of any offence' are distinct

and separate and he craved this Court to so hold.

Against the backdrop of this position, Counsel contended

that a cursory look at the authorities cited and relied upon

by learned Appellant’s Counsel will reveal that they relate

to the 2nd limb of Section 212 (1)(a) of the 1999

Constitution i.e. 'convicted of any offence' and consequently

the first limb of Section 212(1)(a) i.e. 'any person

concerned with' was not directly construed. He urged this

Court to distinguish the facts and circumstances of those

cases cited by the Learned Counsel for the Appellant from

that in the instant appeal.

In the situation of obvious dearth of an express judicial

pronouncement on the meaning ascribable to the

expression, 'any person concerned with' as appearing in

Section 212(1)(a) of the 1999 Constitution, Counsel

resorted to the BLACK’S LAW DICTIONARY, EIGHT

EDITION in defining the word "pardon". According to

Counsel the definition accords with/or is in harmony with

Section 212(1)(a) of the 1999 Constitution.

36

(201

8) LP

ELR-45

237(

CA)

It was further argued by Counsel that the word:

"Punishment" obviously pertains to/is relative to

"conviction", which is a condition precedent to punishment

and that the expression: 'other legal consequences of a

crime' cannot by any stretch of imagination be said to have

any nexus with "conviction". For the avoidance of doubt, he

said that 'other legal consequences of a crime' could

include criminal prosecution, which normally ensues after

the commission of a crime. Counsel also urged this Court to

hold that pardon is in general, an act of forgiving a crime

and it nullifies punishment or other legal consequences of a

crime such as legal prosecution as in the instant appeal.

Learned Counsel also contended that the submission in the

foregoing paragraph is amply demonstrated by the

Supreme Court of the United States of America while

construing the power of pardon under Article 11, Section 2

of the United States Constitution. He said that the United

States of America operates a Federal System and it there

from there that our presidential system/Constitution is

borrowed. He cited the case of case of EXPARTE A. H.

GARLAND (1865) U. S. SUPREME COURT REPORTS,

18 LAWYERS

37

(201

8) LP

ELR-45

237(

CA)

Edition, Wallace 3 - 6 at Page 300 thus: -

"Pardon power extends to every offence known to law,

and may be exercised at any t ime after its

commission, either before legal proceedings are

taken, or during their pendency or after conviction

and judgment."

Counsel urged this Court to be persuaded by the foregoing

case decided by the U. S. Supreme Court. Counsel further

argued that in our jurisprudence, the law recognizes the

fact that an offence can be condoned as is the case with the

provisions of the Armed Forces Act, construed in the case

of NIGERIAN ARMY vs. AMINUN KANO (2010) 5

NWLR [PT. 1188] Page 429 at page 467 paras C - A.

Counsel urged this Court to resolve this issue in favour of

the Respondents.

ISSUE TWO;

Under this issue, Counsel once again stated that an appeal

is a continuation of the case commenced at the trial Court

and this is the jurisprudential reasoning behind the

statement of the law within our jurisdiction that a party

should be consistent in prosecuting his case at the trial

Court as well as on Appeal. He insisted that there should be

no somersault and cited the cases of IJARAFU vs. DZUGU

38

(201

8) LP

ELR-45

237(

CA)

(supra) and ADEOSUN vs. GOVERNOR OF EKITI

STATE (supra). He contended that in the instant case,

learned Counsel for the Appellants while opposing Motion

No. SS/M.126/2017, which is the subject matter of this

appeal had this to say viz: -

"I am relying on all the paragraphs in the Counter-

affidavit. I adopt my arguments in the earlier

applications in Motions numbers SS/M.89/2017 and

SS/M.158/2017." (Please see page 99 of the record of

appeal).

As it relates to Motion no: SS/M.89/2017, Counsel further

stated that learned Counsel for the Appellant in opposing

the said Motion on Notice said inter-alia: -

"Furthermore, Complainant/Respondent is not also

questioning the legality of Exhibit A pardon annexed

to the application." (Please see Page 107 of the

supplementary record of appeal).

According to learned Respondent’s Counsel, it is the

foregoing submission of learned Counsel for the Appellant

inter-alia that informed the finding of fact of the trial Court

at pages 106 - 107 of the record of proceedings thus: -

"This Court has earlier on ruled in Motion Nos.

SS/M89/2017 as well as SS/M158/2017.

39

(201

8) LP

ELR-45

237(

CA)

The arguments are basically the same and

the Complainant/Respondent have conceded to the

undisputed fact that the Governor has the power to

grant pardon as per his powers as preserved by S. 212

of the 1999 Constitution but in this case the pardon

as expressed in the face of the instrument of pardon

Exhibit 'A' does not extend or cover those charges the

Applicants are standing trial before this Court as

Exhibit A was not specific and that the commission of

inquiry and white paper referred to were not the basis

upon which those charges were filed.”

The argument of Respondent’s Counsel on this issue is that

the validity of the instrument of pardon Exhibit 'A' annexed

to Motion Nos. SS/M/126/2017 constituted issue estoppel

as between the parties in this appeal and the Appellant is

not allowed to derogate there from by way of somersault on

Appeal. Counsel referred to Section 169 Evidence Act, 2011

and the following cases: HONDA PLACE LTD vs. GLOBE

MOTORS LTD (supra), OGBOGU vs. NDIRIBE (supra).

In assuming (but without conceding) that the Appellant can

validly impugn the instrument of pardon i.e. Exhibit 'A'

attached to Motion No: SS/M/126/2017 in the trial Court,

40

(201

8) LP

ELR-45

237(

CA)

Counsel submitted that the ground upon which the

Appellant purports to do so in this Appeal is untenable in

law regards being had, to the fact that the only ground the

Appellant is challenging the validity of Exhibit 'A' is that on

the face of it, it is not stated that the Governor of Sokoto

State consulted with the State Advisory Council on

prerogative of mercy before the making thereof.

Counsel further argued that the foregoing stance of the

Appel lant is with the greatest respect rather

absurd/incongruent having regards to the fact that there is

nothing in Section 212(1)(a) of the 1999 Constitution that

requires that the Governor must state on the instrument of

pardon for its validity that he consulted with the Advisory

Council on prerogative of mercy before the making thereof.

He contended that there can hardly be any denial of the

fact that Exhibit A attached to Motion No: SS/M.126/2017

constitutes an official act for which there is a presumption

of regularity under Section 168(1) of the Evidence Act,

2011 formerly Section 150(1) Evidence Act, 2004. Counsel

cited the case of NADABO vs. DUBAI (2011) 7 NWLR

[PT. 1245] Page 155 at Page 178 paras D - G inter-alia

thus: -

41

(201

8) LP

ELR-45

237(

CA)

"By the above provision, whenever a judicial or

official act has been done by a person authorized to

exercise the function of that office in such a manner

that it may be seen to have been substantially

regular, it will be presumed that all the requirements

for its regularity were met until otherwise proved in

other words where such an act has been done, the law

presumes that it was properly done. Whoever

challenges or faults the regularity of the said action

must had credible evidence to rebut the said

presumption."

See alsoC.B.N vs. BECKITI CONST. LTD (2011) 5

NWLR [PT. 1240] PAGE 203 at page 223 paras F – F;

OGU vs. EKWEREMADU (2006) 1 NWLR [PT. 961]

page 255 at page 282 paras F - G.

The submission of the Respondents is that the Appellants

have the bounden duty of rebutting the presumption of

regularity in favour of Exhibit A by adducing credible

evidence and that the feeble attempt made by them in this

Appeal does not by any stretch imagination amount to such

a rebuttal and Counsel urged this Court to so hold. He

urged this Court to resolve this issue in favour of the

Respondents.

42

(201

8) LP

ELR-45

237(

CA)

ISSUE THREE;

In arguing this issue, Counsel said that it’s an issue that

calls for a close scrutiny and subsequent interpretation of

the instrument of pardon Exhibit A to determine whether it

contemplates/includes the offences/crimes for which the

Respondents were standing trial in case No. 55/33C/2009

before the trial Court. To do justice to this issue, Counsel

submit ted that i t i s imperat ive to look at the

nature/character of the offences for which the Respondents

are standing trial in Charge No. SS/33C/2009 and the

words used in Exhibit A. As regards the nature/character of

the offence for which the Respondents are standing trial in

Charge No. SS/33C/2009, Counsel drew attention to the

fact that all of them are offences embedded in the Penal

Code law of Sokoto State and for all intents and purposes,

offence against the Laws of Sokoto State. He said that

although the parties are at “consensus ad idem” on this

point, what seem to be the only point of divergence

between the parties relates to: whether the instrument of

pardon Exhibit A can be construed in such a manner as to

cover the offences for which the Respondents are standing

trial in the Court below.

43

(201

8) LP

ELR-45

237(

CA)

To resolve this controversy, Counsel took time to reproduce

the contents of Exhibit A hereunder viz: -

"CONSTITUTION OF THE FEDERAL REPUBLIC OF

NIGERIA SOKOTO STATE OF NIGERIA

SOKOTO STATE LEGAL NOTICE ...... 2016

In the exercise of the powers vested in me under Section

212 of the Constitution of the Federal Republic of Nigeria

1999, as amended and all other powers enabling me in that

behalf, I, Aminu Waziri Tumbuwal, Governor of Sokoto

State, do hereby grant an unconditional pardon to the

persons listed in the schedule to this legal notice.

SCHEDULE:

NAME

NATURE OF PARDON

1. ALHAJI UMARU KWABO The indictment by the Report of

Alhaji Muhammad Aminu Ahmad, Commission of Inquiry

and the Government White Paper dated 28th October, 2009

and six (6) of them are hereby granted unconditional State

pardon for the offences they are concerned with arising

from the ‘report and white paper and any criminal offence’

they might have been accused of against the laws of Sokoto

State.

2. A. A. MUHAMMADU MAIGARI DINGYADI

3. HON. HABIBU MODACHI

4. ALHAJI ISAH SADIQ ACIDA

5. ALHAJI MUHAMMADU TUKUR ALKALI

6. ALHAJI BELLO ISAH

(201

8) LP

ELR-45

237(

CA)

44

(201

8) LP

ELR-45

237(

CA)

DATED 29TH DAY OF SEPTEMBER, 2016

RT . HON. AMINU WAZIRI TAMBUWAL CFR ,

(MUTAWALLEN SOKOTO)

GOVERNOR, SOKOTO STATE."

In his arguments on this issue, Counsel drew attention to

what he referred to as the operative words, which are

germane in construing Exhibit A reproduced above, which

he said are…" and six (6) of them are hereby granted

unconditional pardon for the offences they are concerned

with arising from the report and white paper and any

criminal offence they might have been accused of against

the laws of Sokoto State."

According to Counsel, the foregoing instrument shows

clearly that there are two legs to it and can be ascertained

by the use of the words: "and" between: "white paper and

any criminal offence". Counsel said that assuming for

purposes of mere argument that the offences for which the

Respondents are standing trial does not arise from the

Report and white paper (But not conceded), he submitted

that Exhibit A is couched in very wide terms as to cover the

offences the accused persons are standing trial and which

offences are undisputedly against the laws of Sokoto State.

45

(201

8) LP

ELR-45

237(

CA)

Counsel further argued that the intention of the Governor

of Sokoto State as expressed in Exhibit A is that apart from

the Report and White paper, the Respondents should also

benefit from reprieve for other offences committed against

the laws of Sokoto State; that if the intention of the

Governor was otherwise he would have stopped

immediately after the word: White Paper as the addition of

any criminal offence they might have been accused of

against the law of Sokoto State", will have been merely

superfluous, which can never be the intention of the

Governor.

In view of the foregoing, Counsel urged this Court to

construe the word and appearing in Exhibit A between

"white paper" and "any criminal offence" disjunctively

thereby giving full effect/meaning to the intention of the

Governor of Sokoto as expressed in Exhibit A. He said that

this was the situation in the case of OGUNYADE vs.

OSHUNKEYE (2007) 15 NWLR (PT. 1057) page 218 at

page 245 paras E – H inter-alia thus: -

“I cannot fault the Court of Appeal. The Court is

correct. In grammar or syntax, a sentence does not

end with the word "and". It is a conjunction playing

the role in grammatical construction of connecting

words or

46

(201

8) LP

ELR-45

237(

CA)

phrases expressing the idea that the later is to be

added or taken along with the first."

In sum, Counsel urged this Court to resolve this Appeal in

favour of the Respondent.

RESOLUTION OF APPEAL

At the core of the very issues in this Appeal is the question

of the proper interpretation of the powers of the Governor

of a State under Section 212(1) (a) of the Constitution of

Nigeria, 1999 as Amended. The Appellant had contended

that it would be wrongful of the Governor to exercise its

powers in granting a pardon where there had been no

conviction recorded in respect of a criminal offence,

because according to learned Appellant’s Counsel, a person

who is yet to be convicted is presumed innocent until the

contrary is proved. The learned Respondent’s Counsel on

the other hand had put up a contrary argument as he

contended that the power of pardon extends to every

offence known to law and may be exercised at any time

after its commission, either before legal proceedings are

taken or during their pendency or after conviction and

judgment. This has been the focal point of the issues

nominated for the determination of this Appeal.

47

(201

8) LP

ELR-45

237(

CA)

In the instant Appeal, the Governor of Sokoto State, North-

West Nigeria, the Rt. Hon. AMINU WAZIRI TAMBUWAL

CFR, pursuant to an Instrument of Pardon dated the 29th

day of September, 2016 had exercised his Constitutional

powers under Section 212(1) (a) of the Constitution of

Nigeria, 1999 in granting pardon to the Respondents

herein at a time when they were undergoing trial and

under circumstances in which they were yet to be convicted

by the Court below.

Before the exercise of the said powers of pardon, the

Respondents were standing trial before the Court below on

a-One Hundred and Forty-Four (144) counts Amended

Charge dated 11th day of January, 2010 for sundry offences

including conspiracy, breach of trust, receiving stolen

property, all punishable under the Penal Code applicable in

Sokoto State of Nigeria. It would be recalled that at the

Court below, trial had commenced and the Appellant's

Counsel were calling their witnesses, when the

Respondents through their Counsel filed a motion on notice

dated 4th day of April, 2017 praying the Court inter alia for

an order discharging them from the charges in the case on

the grounds that they had

48

(201

8) LP

ELR-45

237(

CA)

been granted unconditional pardon by the Governor of

Sokoto State. The question that should perhaps, be asked

at this stage is: what does the word “Pardon” denote under

the Constitution of Nigeria, 1999 as Amended?

The Constitution of Nigeria, 1999 provides the power of

“Pardon” under Section 175 for the President of the

Federal Republic of Nigeria as follow;

“1. The President may –

A. grant any person concerned with or convicted of any

offence created by an Act of National Assembly a

pardon, either free or subject to lawful conditions;

B. grant to any person a respite, either for an indefinite or

for a specified period, of the execution of any punishment

imposed on that person for such an offence;

C. substitute a less server form of punishment for any

punishment imposed on that person for such an offence; or

D. remit the whole or any part of any punishment imposed

on that person for such an offence or of any penalty or

forfeiture otherwise due to the State on account of such an

offence.

2. The powers of the President under Subsection (1) of this

section shall be exercised by him after consultation

with the Council of State.

49

(201

8) LP

ELR-45

237(

CA)

3. The President, acting in accordance with the advice of

the Council of State, may exercise his power under

Subsection (1) of this section in relation to persons

concerned with offences against the army, naval or air

force law or convicted or sentenced by a Court-martial.

In the case of the Governor of a State, the Constitution

provides under Section 212, the power of pardon for

offences created by any Law of a State in the following

words:

“1. The Governor may –

A. Grant any person concerned with or convicted of any

offence created by any law of a State a pardon, either free

or subject to lawful conditions;

B. grant to any person a respite, either for an indefinite or

for a specified period, of the execution of any punishment

imposed on that person for such an offence;

C. substitute a less severe form of punishment for any

punishment imposed on that person for such an offence; or

D. remit the whole or any part of any punishment imposed

on that person for such an offence or of any penalty or

forfeiture otherwise due to the state on account of such an

offence.

50

(201

8) LP

ELR-45

237(

CA)

2. The power of the Governor under Subsection (1) of this

section shall be exercised by him after consultation with

such advisory Council of the State on prerogative of mercy

as may be established by the Law of the State.”

This Court, in the case of FALAE vs. OBASANJO (NO. 2)

(1999) LPELR-6585 (CA) per MUSDAPHER, JCA (as he

then was) defined:

“Pardon is an act of grace by the appropriate

authority which mitigates or obliterates the

punishment the law demands for the offence and

restores the rights and the

privileges forfeited on account of the offence. See

VERNECO INC v. FIDELITY CAS C. AT NEW YORK 253

LA 721, 219 SO 2D 508, 511."

Also in the case of UNITED STATES v. WILSON, 32 U. S.

(7 Pet) 150 (1833) at 159-60, Pardon was defined as an

act of grace proceeding from the power entrusted with the

execution of the laws, which exempts the individuals, on

whom, it is bestowed from the punishment the law inflicts

for a crime he has committed. It is further defined as the

“private”, though official act of the Executive.

Under ARTICLE II Section 2 the Constitution of the United

States of America, the provision is titled:

51

(201

8) LP

ELR-45

237(

CA)

“Civilian Power over Military, Cabinet, Pardon Power,

Appointments”, ostensibly to demonstrate the political

nature of the power, which grants the Chief Executive of

State a political duty rather than a duty of law or justice to

grant acts of clemency to deserving persons under a

political entity. It is for this reason that the duty to pardon

is neither grounded in nor limited by considerations of law

or morality, as it is essentially one of politics and therefore

never expected to be a subject of litigation in any Court of

law, because of its discretionary nature.

In the case of BIDDEL v. PEROVICH, 274 U. S. A. 480,

486 (1972) the act of pardon is also said to be a part of

the Constitutional scheme to be exercised for the public

welfare that need not be justified or defended within the

legal system so long as it is “a matter of grace”.

On the question of the proper interpretation of Section

212(1)(a) 1999 Constitution, there is absolutely no doubt

that there are two limbs to the category of persons who can

be beneficiaries or subject-matter of Pardon pursuant to

the powers conferred on the Governor of a State under the

52

(201

8) LP

ELR-45

237(

CA)

scheme of things, which recognizes the following

categories;

1. "any person concerned with” or

2. “convicted of any offence."

The attitude of this Court in dealing with the issue of

interpretation of Statutes is to strictly adhere to the first

traditional rule of statutory construction, which dictates

that the ordinary meanings of the words has to be adhered

to in the absence of any special reasons to act otherwise. In

this regard, see the words of TINDAL, C. J., in SUSSEX

PEERAGE CASE (1844) CI. & FIN. 85; See also LAWAL

vs. G.B. OLLIVANT (1972) 2 SC 124; ATUYEYE vs.

ASHAMU (1987) 5 NWLR (PT. 49) 267 AT 353;

ABIOYE vs. YAKUBU (1991) 5 NWLR (PT. 190) 130 AT

203-233-4.

In responding, therefore to learned Appellant Counsel’s

resort to the use and application of the Ejusdem Generis

canon of interpretation under circumstances, such as in

this case in which the ordinary meanings of the words used

in Section 212 (1) (a) of the 1999 Constitution of Nigeria

(As amended) are plain and unambiguous, is to quickly

draw attention to the fact that to be allowed to so do, is to

allow violence to be done to the true meaning of

53

(201

8) LP

ELR-45

237(

CA)

Section 212(1)(a) of the Constitutionand in the process,

obliterate the purpose and intention for which the makers

of the law have deliberately included the word: “or”

between the phrases: “any person concerned with” on the

one hand and “convicted of any offence" on the other hand.

In therefore, relying on the classical position here, it is

important to note that the word; “or” in the provision,

included by the law makers deliberately conveys a

disjunctive meaning which accords with Section 18(3) of

the Interpretation Act, CAP. 123 LFN, 2004, which provides

that, the word: "or" in any enactment, be construed

disjunctively and not as implying a similarity. In the case of

ALHAJI ATIKU ABUBAKAR vs. YAR'ADUA (2009) ALL

FWLR (PT. 457) 1 at 76 - 86 paragraphs G – D., this

Court per KATSINA-ALU, JCA (as he then was) held the

view that;

“The word “or” is defined in Black’s Law Dictionary,

6th Edition, in the following terms: A disjunctive

participle used to express an alternative or to give a

choice of one among two or more things.”

54

(201

8) LP

ELR-45

237(

CA)

Against the backdrop of this position, I simply find myself

unable to disagree with the arguments of the Respondent’s

Counsel that the expressions: “any person concerned with”

or “convicted of any offence” used in Section 212 (1)(a) of

the Constitution of Nigeria, 1999 as Amended are not

distinct and separate clauses. I am therefore also in

agreement with learned Respondent’s Counsel, that the

authorities cited and relied upon by learned Appellant’s

Counsel are clearly related to the second limb of Section

212 (1)(a) of the 1999 Constitution, dealing with situations

where beneficiaries must have been “convicted of any

offence”, before they are granted the pardon of the State

Governor. What this means in essence therefore, is that

learned Appellant’s Counsel Submissions due to reasons

best known to Counsel have failed to address the first limb

of the Constitutional provision dealing with the expression:

“any person concerned with”.

It would equally be recalled that in arguing this issue,

learned Appellant’s Counsel made a heavy weather arguing

that the power of pardon cannot be exercised where a

conviction had not been handed

55

(201

8) LP

ELR-45

237(

CA)

down, and by so doing stringed-up together a number of

interesting arguments tending in the process to forget that

the exercise of the power of pardon in the hands of the

Chief Executive of a State is a political contrivance, which

is rarely limited by legal considerations except where there

are obvious and deliberate failures to adhere to clearly

stated guidelines on the issues, which students and

scholars of the Nigerian Constitution would readily admit

are clearly none existent.

A careful and calm reading of both Sections 175 and 212 in

this connection, which provides for the Constitutional

powers of pardon, contain no such things as procedures,

steps and requirements, thus giving the Nigerian President

or State Governor respectively, more space to manoeuver

in his exercise of his power to grant a pardon.

However, in the wake of an obvious dearth in judicial

pronouncements on the subject in the political space called

Nigeria, learned Respondent’s Counsel cited the case of

EXPARTE A. H. GARLAND (1865) U. S. SUPREME

COURT REPORTS, 18 LAWYERS Edition, Wallace 3 - 6

at Page 300, where the United States Supreme Court had

this to say on the subject;

56

(201

8) LP

ELR-45

237(

CA)

"Pardon power extends to every offence known to law,

and may be exercised at any t ime after its

commission, either before legal proceedings are

taken, or during their pendency or after conviction

and judgment."

(Under lined, mine for emphasis)

The effect of a pardon, as expressed by JUSTICE FIELD in

the said case in which Garland, an Attorney, had been

pardoned by President Andrew Johnson for offences

committed during the civil war, is that:

“A pardon reaches both the punishment prescribed

for the offence and the guilt of the offender; and

when the pardon is full it releases the punishment

and blots out of existence the guilt so that in the eyes

of the law the offender is as innocent as if [sic] he

had never committed the offence. If granted before

conviction, it prevents any of the penalties and

disabilities consequent upon conviction from

attaching. If granted after conviction it removes the

penalties and disabilities and restores to him all his

civil rights.”

(Underline is mine for emphasis).

Apart from the fact that the above position puts it beyond

further disputations about whether a conviction has to

57

(201

8) LP

ELR-45

237(

CA)

be a prerequisite for the proper exercise of the power of

pardon or not, learned Respondent’s Counsel also raised an

interesting argument on the issue where he resorted to the

BLACK’S LAW DICTIONARY, EIGHT EDITION in defining

the word "pardon", which he said accorded with/or is in

harmony with Section 212(1)(a) of the 1999 Constitution. In

his words: "Punishment" obviously pertains to/is relative to

"conviction", which is a condition precedent to punishment

and that the expression: “other legal consequences of a

crime” cannot by any stretch of imagination be said to have

any nexus with "conviction".

In this connection, I am in agreement with the learned

Respondent’s Counsel that the “other legal consequences

of a crime” as contemplated by the Constitutional provision

could include ‘criminal prosecution’, which normally ensues

after the commission of a crime more so when the act of

pardon is in general, an act of forgiving a crime and

nullifying punishment or other legal consequences of a

crime such as legal prosecution as in the instant appeal.

58

(201

8) LP

ELR-45

237(

CA)

The other hotly contested issue between the parties to this

Appeal, of the three nominated issues, is the question,

which has to do with whether the instrument of pardon in

Exhibit “A” can be construed in such a manner as to cover

the offences for which the Respondents are standing trial in

the Court below. A careful construction of Exhibit “A”, will

reveal in bold relief the fact that there are two legs to the

question as well, and which are clearly set apart by the use

of the word: "and" between; "white paper and any other

criminal offence". Assuming arguendo that the offences for

which, the Respondents are standing trial do not arise from

the Report and white paper, what is rather obvious,

however, is that the Exhibit is couched in such a way that

any other offences for which the accused persons are

standing trial and which offences are against the laws of

Sokoto State are also captured within its scope.

In the final analysis, this Appeal is moribund and it is

accordingly dismissed. The Ruling of the High Court of

Sokoto State sitting at Sokoto Coram: ABBAS BELLO, J.

delivered on the 29th day of June, 2017 is hereby affirmed.

The parties are to bear their respective costs.

59

(201

8) LP

ELR-45

237(

CA)

HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in

advance the lead judgment just rendered by my learned

brother, Frederick O. Oho, JCA. I am in absolute agreement

with the entire reasoning therein and the conclusion that

the appeal is bereft of substance.

The unmeritorious appeal is hereby dismissed. I subscribe

to the consequential orders made in the judgment.

M U H A M M E D L A W A L S H U A I B U , J . C . A .

(DISSENTING): My learned brother, Frederick O. Oho,

JCA has so graphically and ably stated the facts of the case

and that arose on appeal that I do not intend to repeat

them in my contribution except to add as follows:

In the instant appeal, the Governor of Sokoto State of

Nigeria, the Rt. Hon. Aminu Waziri Tambuwal CFR,

Pursuant to an instrument of pardon dated the 29th day of

September, 2016 has granted pardon to the respondents

herein at a time when they were undergoing trial and in

which they were yet to be convicted by the Court below.

Thus, the core issue for determination in this appeal is the

proper construction and or interpretation of the powers of

the Governor of a State under

60

(201

8) LP

ELR-45

237(

CA)

Section 212 (1) of the Constitution of the Federal Republic

of Nigeria, 1999 (as amended). The relevant provisions of

Section 212 (1) provides:

“212 (1) The Governor may-

(a) grant any person concerned with or convicted of any

offence created by any law of a state a pardon either free

or subject to lawful conditions.

(b) Grant to any person a respite, either for an indefinite or

for a specified period of the execution of any punishment

imposed on that person for such an offence;

(c) Substitute a less severe form of punishment for any

punishment imposed on that person for such an offence; or

(d) Remit the whole or any punishment imposed on that

person for such an offence or of any penalty or forfeiture

otherwise due to the state on account of such an offence.

(e) The power of the Governor under Subsection (1) of this

Section shall be exercised by him after consultation with

such advisory council of the state on prerogative of mercy

as may be established by the law of the state.”

Pardon is the act or an instance of officially nullifying

punishment or other legal consequences of a crime.

61

(201

8) LP

ELR-45

237(

CA)

Therefore, pardon is usually granted by the Chief Executive

of a Government. The President has the sole power to issue

pardon for Federal Offences, and State governors have the

power to issue pardon for State crimes which are also

termed as “executive pardon.” The term pardon is first

found in early French law latin perdonare (“to grant

freely”), suggesting a gift bestowed by the sovereign. It

has thus come to be associated with a somewhat personal

concession by a head of State to the perpetrator of an

offence in mitigation or remission of the full punishment

that he has merited.

According to Dicey, in the introduction to the study of the

Law of the Constitution, 10th Edition 1959 a pardon is the

residue of discretionary or arbitrary authority which at any

given time is legally left in the hands of the crown. Prior to

the seventeenth century, the English Monarch’s power to

pardon was absolute. His royal prerogative was as secret to

him as the “right of Englishmen” were to the individual;

so sacred in fact, that not even the king could dimish the

royal tradition. Subsequently, prerogative of mercy came

into effect in Nigeria through statute of general

62

(201

8) LP

ELR-45

237(

CA)

application and the concept remain an integral part of the

Nigeria legal history.

I have earlier reproduced the provisions of Section 212 of

the 1999, Constitution which is similar with Section 175

thereof as regard the power of the president to grant

pardon.

The instrument of pardon giving rise to this appeal is

Exhibit “A” annexed to the motion on a notice filed on

6/4/2017 at page 90 of the record of appeal which read as

follows:

“CONSTITUTION OF THE FEDERAL REPUBLIC OF

NIGERIA SOKOTO STATE OF NIGERIA

SOKOTO STATE LEGAL NOTICE ………2016.

In the exercise of the powers vested in me under Section

212 of the Constitution of the Federal Republic of Nigeria

1999, as amended and all other powers enabling me in that

behalf I, Aminu Waziri Tambuwal, Governor Sokoto State,

do hereby grant an unconditional pardon to the persons

listed in the schedule to this legal notice.

SCHEDULE

Name

i. Alhaji Umaru Kwabo A. A.

ii. Alhaji Habibu Halilu Modachi Ahmad’s

iii. Hon. Muhammadu Maigari

iv. Alhaji Isah Sadiq Acida

v. Alhaji Muhammadu Tukur Alkali

vi. Alhaji Bello Isah

63

(201

8) LP

ELR-45

237(

CA)

NATURE OF PARDON

The indictment by the Report of Alhaji Muhammad Aminu

Commission of Inquiry and the Government White paper

dated 28th October, 2009 and six (6) of them are concerned

with arising from the report and white paper and criminal

offence they might have been accused of against the law of

Sokoto State.

Dated 29th day of September, 2016.

Sign

RT. HON. AMINU WAZIRI TAMBUWAL CFR

(MUTAWALLEN SOKOTO)

GOVERNOR SOKOTO STATE."

Learned appellant’s counsel submitted that in the light of

the applicable Section 212 (1) of the 1999 Constitution, a

person who has not been tried and convicted by a

competent Court for an offence cannot be pardoned. He

referred to SOLOLA V. STATE (2005) 2 NWLR (Prt.

937) 460 at 488 – 489 and OKONGWU V. STATE

(1986) 5 NWLR (Prt. 44) 741 at 750.

Still in argument, learned counsel submitted that the

nature of the pardon as contained in Exhibit “A” is

ambiguous and is not wide enough to cover any criminal

offences against the laws of Sokoto State.

Learned counsel for the respondents on his part referred to

Article II, Section 2 of the United States

64

(201

8) LP

ELR-45

237(

CA)

Constitution as well as the case of EXPARTE A. H.

GARLAND (1865) U.S. SUPREME COURT REPORTS in

contending that the power of pardon extends to every

offence known to law which may be exercised at any time

after its commission either before legal proceedings are

taken or during their pendency or after conviction and

judgment.

It is pertinent to stress here that prerogative of mercy is

clearly distinguishable with other prerogatives such as

amnesty, condonation and nolle Prosequi. Although they

are all legal apparatus used at one point or the other in

criminal matters and exercised by the executive arm of

government, they are not the same. “Amnesty” is an act of

the sovereign power granting oblivion, or a general pardon,

for a past offence, as to the subject concerned in an

insurrection. Thus, it is an official statement allowing

people who have been put in prison for crimes against the

state to go free. See ADEOLA V. STATE (2017) LPELR –

42327 (CA) “Condonation” is the voluntary overlooking

and implied forgiveness by treating offender as if the

offence had not been committed.

65

(201

8) LP

ELR-45

237(

CA)

See NIGERIAN ARMY V. AMINU KANO (2010) LPELR

– 2013 (SC). Nol le proseque has the effect of

discontinuance or taking over and continuing a criminal

proceeding. In AUDU V. A.G. FEDERATION & ANOR

(2012) LPELR – 15527 (SC) Per OGUNBIYI JSC at pages

32 – 33 paras F. B. said:

“On the concept of nolle prosequi, it is an exercise of

power by the Attorney General of the Federation or

State and which can be exercised at any stage of a

criminal proceeding. Once the power is invoked it will

not be subject to question either by any person or

even the Court. As at the date of granting the

application by the trial Court therefore, the

consequential effect of filing of nolle prosequi by both

Attorney – Generals of the Kogi State and the

Federation had automatically abated the criminal

proceedings.”

Prerogative of mercy on the other hand has the effect of

granting to a convict a respite or remission of punishment,

pardoning, forgiving or conditionally or unconditionally

washing clean a sentenced criminal.

According to Glenn P. hastedt, an American professor

pardon may be granted before or after conviction for the

crime depending on the laws of the jurisdiction.

66

(201

8) LP

ELR-45

237(

CA)

Amalgamating the above view alongside the standing

practice in the United States of America as evidenced in

several cases including that of President Richard Nixon,

one can safely conclude that an executive pardon may be

granted during criminal proceedings and not necessarily

after conviction. However, the Supreme Court in Nigeria

while considering the power of the president to grant

pardon under Section 175 (1) of the 1999 Constitution

which is similar in all respect with Section 212 of the said

Constitution in the case of SOLOLA V. STATE (2005) 5

SC (Prt 1) 143 Per, Edozie, JSC at page 147 paras 20 –

30 said:

“It needs to be stressed for future guidance that a

person convicted for murder and sentenced to death

by a High Court and whose appeal is dismissed by the

Court of Appeal is deemed to have lodged a further

appeal to this Court and until that appeal is finally

determined, the Head of state or the Governor of a

state cannot, pursuant to Section 175 or Section 212

of the Constitution, as the case may be, exercise his

powers of prerogative of mercy in favour of that

person.

67

(201

8) LP

ELR-45

237(

CA)

In the same vein, such person cannot be executed

before his appeal is disposed of. It is hoped that the

prison authorities will be guided by this advise.”

On his part, Belgore, JSC (as he then was) at page 47 paras

36 – 45 said: -

“The three accused persons convicted and whose

appeal was dismissed by the Court of Appeal were

normally expected to be all before this Court on

Appeal. But that was not to be as we are told the third

accused was pardoned. We heard this only from the

Solicitor General of Ogun State speaking from the

Bar. The third accused was the arrow-head of the

conspiracy leading to the murder of the victim and I

am disturbed at this development. The principal

accused who led the conspiracy and supervised the

murder of the poor infant hunchback has been let

loose. The murder, no doubt was a ritual one. The

rules as to grant of prerogative of mercy must be re-

examined.”

In the light of all that I have been saying, the law must be

set in motion for it to arrive at its terminus. In other words,

prerogative of mercy as a legal concept cannot in my

respectful view be set in motion unless and until there is a

sentence of Court on a convicted

68

(201

8) LP

ELR-45

237(

CA)

person(s) which the mercy will act as a vehicle of

mitigating or waiving the punishment. Where as in the

instant case, the respondents’ trial was on going, there

cannot be a pardon granted to the respondents by the

Governor of Sokoto State pursuant to Section 212 of the

1999 Constitution. As corollary to the above, the

instrument of pardon in the instant case Exhibit “A” must

be precise and tide to a particular offence or offences and

can never be at large. I dare say that the said instrument of

pardon has no nexus with the offences charged even

though same was purportedly made while the trial on the

one hundred and forty four counts charge was pending

against the respondents. The instrument of pardon is to say

the least vague; imprecise and clearly ambiguous.

In the final result and for all the reasons that I have given

above, this appeal succeeds and it is hereby allowed. The

ruling of the trial Court delivered on 29/06/2017

discharging the respondents is accordingly set aside. In its

place, the respondents are to continue with their trial

before another judge of the Sokoto State High Court other

than Hon. Justice Bello Abbas.

69

(201

8) LP

ELR-45

237(

CA)

Appearances:

CHILE OKOROMA ESQ. For Appellant(s)

SAMUEL ATUNG ESQ. For Respondent(s)

(201

8) LP

ELR-45

237(

CA)