The Administration of Criminal Justice Act (ACJA) was signed
into law by former president Goodluck Jonathan in 2015 and has
since its enactment revolutionized the administration of criminal
justice in the country. The provisions of the Act have been largely
re-enacted in the Administration of Criminal Justice Law of Delta
State 2017. This write-up considers the provision of Section
300 (3) of the Administration of Criminal Justice Law of Delta
State and argues its sustainability in the light of constitutional
provisions on the state’s legislative competence to enact same.
THE CONSITUTION AND LEGISLATIVE COMPETENCE
Generally, the Constitution of the Federal Republic of
Nigeria 1999 (As amended) clearly sets out matters upon
which federal and state legislative arms exercise competence.
Section 4(1)(3) & (7) of the Constitution
provides:
“4. (1) The legislative powers of the Federal Republic of
Nigeria shall be vested in a National Assembly for the Federation,
which shall consist of a Senate and a House of
Representatives…
(3) The power of the National Assembly to make
laws for the peace, order and good government of the
Federation with respect to any matter included in the
Exclusive Legislative List shall, save as otherwise
provided in this Constitution, be to the exclusion of the Houses of
Assembly of States…
(7) The House of Assembly of a State shall have
power to make laws for the peace, order and good government of the
State or any part thereof with respect to the following matters,
that is to say:
(a) any matter not included in the Exclusive
Legislative List set out in Part I of the Second Schedule
to this Constitution.”
By the combined provisions of Section 4 (3) and
(7), all matters in the Exclusive Legislative List set-out
in the Second Schedule to the Constitution are exclusively under
the federal legislative competence of the National Assembly and
cannot be legislated upon by any State House of Assembly. The
Supreme Court gave judicial impetus to this reasoning when it
considered the “exclusivity” the exclusive legislative list in
A-G OF FEDERATION v. A-G OF LAGOS STATE (2013)
LPELR-20974(SC) and stated that:
“…apart from the National Assembly, no other legislative
assembly whether of state or Local Government (if any) can legally
and effectively legislate on any matter listed under the Exclusive
Legislative List.” See also Attorney-General, Plateau
State v. Goyol (2007) NWLR (Pt. 1059) 57 at 92, paras. D – G
(CA)
The issue was also thoroughly considered by the Supreme Court in
the popular case of A-G Abia State v. A-G. Federation
(2006) 16 NWLR (Pt. 1005) where the apex court per
Tobi, JSC concluded that:
“There are two Legislative lists in the 1999 Constitution.
These are the Exclusive Legislative List and Concurrent Legislative
List. The Exclusive Legislative List of Part 1 Schedule 2 to the
Constitution contains 68 items. By Section 4(2) only the National
Assembly can exercise legislative powers on the 68 items…While
the House of Assembly of a State is prohibited from
exercising legislative functions on matters in the Exclusive
Legislative List”
UNDER THE CONSTITUTION ONLY THE NATIONAL ASSEMBLY CAN
LEGISLATE ON EVIDENCE
The Exclusive Legislative List in the Second Schedule to the
1999 Constitution contains 68 items amongst which “Evidence” is
item 23. Evidence by our constitution is a matter only the National
Assembly can legislate upon and the National Assembly did so when
it enacted the Evidence Act 2011 Cap E14 laws of the
Federation of Nigeria which according to its explanatory
memoranda has application to all judicial proceedings in or before
courts in Nigeria.
Interestingly however, in the “re-enacting” the provisions of
the ACJA, some states have attempted a subtle enactment on “other
matters” including evidence. This is the precarious position of
Section 300 (3) of the ACJL of Delta State.
One must note that Section 1 (3) of the
constitution makes the constitution supreme and stipulates that any
law inconsistent with the constitution must to the extent of its
inconsistency be null and void. See. Towoju v. Gov. Kwara
State (2006) ALL FWLR (Pt. 321) 1365 at 1389 (CA).
Therefore, whenever a State House of Assembly legislates on any
matter outside its legislative competence the act is ultra vires
and any law proceeding from it shall be deemed inconsistent with
the constitution, null and void to the extent to which it is
inconsistent.
SECTION 300(3) OF THE ACJL OF DELTA STATE IS A MATTER OF
EVIDENCE AND CANNOT BE LEGISLATED BY A STATE HOUSE OF
ASSEMBLY
As a preliminary point, it is incisive to note that the
provisions of Section 300(3) of the ACJL of Delta State is not
similarly contained under the ACJA 2015 which the law sought to
replicate. The inclusion of Section 300(3) in the Delta State Law
was therefore an independent act by the State’s House of Assembly
to address the issue of delayed trial occasioned by the conducting
of a trial-within-trial when a confessional statement is objected
to on the ground of involuntariness. The Assembly in undertaking
this noble cause however ended up enacting a provision which
clearly over-reached the State’s legislative limits under the
constitution by conspicuously legislating upon evidence. The said
Section 300(3) provides that:
“In the course of any criminal trial, where the
admissibility of any confessional statement is objected to by a
defendant on the ground of involuntariness, the Court shall note
the objection and the ground for the objection thereon and make a
decision in its judgement at the end of the trial without
conducting a trial within trial”.
The provision clearly touches on evidence in judicial
proceedings which, according to item 23 of the Exclusive
Legislative List, is a matter exclusively within the legislative
competence of the National Assembly. This is particularly so as
Section 29(2) of the Evidence Act 2011 already
makes provision on the exact issue and states the duty of the trial
judge when an Accused person challenges the voluntariness of a
confessional statement thus:
“(2) If, in any proceedings where the prosecution proposes
to give in evidence a confession made by a defendant, it is
represented to the court that the confession was or may have been
obtained –
- by oppression of the person who made it; or
- in consequence of anything said or done which was likely,
in the circumstances existing at the time, to render unreliable any
confession which might be made by him in such consequence,
the court shall not allow the confession to be given in
evidence against him except in so far as the
prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may
be true) was not obtained in a manner contrary to the provisions of
this section.
Apparently, Section 29 of the Evidence Act and
Section 300(3) of the Delta State ACJL stipulate
different positions on the court’s duty when a Defendant objects to
a confessional statement as involuntary. There cannot be two
provisions on the same issue of “evidence” which conflict each
other, particularly since the later was enacted by the State House
of Assembly obviously lacking vires to so enact. The provision of
Section 300(3) cannot be saved by any thought of argument that is a
mere “domestication” of the ACJA on the issue since same provision
is not in Section 300 of the ACJA. In effect, Section 300 (3) of
the ACJL of Delta State is ultra vires the legislative powers of
the Delta State House of Assembly, inconsistent with the
constitution and to the extent of its inconsistency is null and
void.
IN CONCLUSION
The curious position under Section 300 (3) of the ACJL of Delta
State is one which can be carefully avoided in ACJLs of respective
States. While the administration of crime is a concurrent matter
which both federal and state legislature can legislate over,
evidence is a matter exclusively within the legislative territory
of the National Assembly. State Houses of Assembly must therefore
note that they cannot attempt to amend the Evidence Act by the
provisions of their respective State ACJLs. What can be done
however is regulate proceedings in court which do not deal with
evidence in itself but procedures in criminal proceedings. The ACJL
of Lagos State is recommended as veritable guide on how to
carefully carry out this difficult legislative task in other to
avoid provisions which may be too quickly declared null and
void.
Oliver Omoredia Esq.
Associate Obiagwu & Obiagwu
LLP
08100193573, oliveromoredia@yahoo.com
The Administration of Criminal Justice Act (ACJA) was signed
into law by former president Goodluck Jonathan in 2015 and has
since its enactment revolutionized the administration of criminal
justice in the country. The provisions of the Act have been largely
re-enacted in the Administration of Criminal Justice Law of Delta
State 2017. This write-up considers the provision of Section
300 (3) of the Administration of Criminal Justice Law of Delta
State and argues its sustainability in the light of constitutional
provisions on the state’s legislative competence to enact
same.
THE CONSITUTION AND LEGISLATIVE COMPETENCE
Generally, the Constitution of the Federal Republic of
Nigeria 1999 (As amended) clearly sets out matters upon
which federal and state legislative arms exercise competence.
Section 4(1)(3) & (7) of the Constitution
provides:
“4. (1) The legislative powers of the Federal Republic of
Nigeria shall be vested in a National Assembly for the Federation,
which shall consist of a Senate and a House of
Representatives…
(3) The power of the National Assembly to make
laws for the peace, order and good government of the
Federation with respect to any matter included in the
Exclusive Legislative List shall, save as otherwise
provided in this Constitution, be to the exclusion of the Houses of
Assembly of States…
(7) The House of Assembly of a State shall have
power to make laws for the peace, order and good government of the
State or any part thereof with respect to the following matters,
that is to say:
(a) any matter not included in the Exclusive
Legislative List set out in Part I of the Second Schedule
to this Constitution.”
By the combined provisions of Section 4 (3) and
(7), all matters in the Exclusive Legislative List set-out
in the Second Schedule to the Constitution are exclusively under
the federal legislative competence of the National Assembly and
cannot be legislated upon by any State House of Assembly. The
Supreme Court gave judicial impetus to this reasoning when it
considered the “exclusivity” the exclusive legislative list in
A-G OF FEDERATION v. A-G OF LAGOS STATE (2013)
LPELR-20974(SC) and stated that:
“…apart from the National Assembly, no other legislative
assembly whether of state or Local Government (if any) can legally
and effectively legislate on any matter listed under the Exclusive
Legislative List.” See also Attorney-General, Plateau
State v. Goyol (2007) NWLR (Pt. 1059) 57 at 92, paras. D – G
(CA)
The issue was also thoroughly considered by the Supreme Court in
the popular case of A-G Abia State v. A-G. Federation
(2006) 16 NWLR (Pt. 1005) where the apex court per
Tobi, JSC concluded that:
“There are two Legislative lists in the 1999 Constitution.
These are the Exclusive Legislative List and Concurrent Legislative
List. The Exclusive Legislative List of Part 1 Schedule 2 to the
Constitution contains 68 items. By Section 4(2) only the National
Assembly can exercise legislative powers on the 68 items…While
the House of Assembly of a State is prohibited from
exercising legislative functions on matters in the Exclusive
Legislative List”
UNDER THE CONSTITUTION ONLY THE NATIONAL ASSEMBLY CAN
LEGISLATE ON EVIDENCE
The Exclusive Legislative List in the Second Schedule to the
1999 Constitution contains 68 items amongst which “Evidence” is
item 23. Evidence by our constitution is a matter only the National
Assembly can legislate upon and the National Assembly did so when
it enacted the Evidence Act 2011 Cap E14 laws of the
Federation of Nigeria which according to its explanatory
memoranda has application to all judicial proceedings in or before
courts in Nigeria.
Interestingly however, in the “re-enacting” the provisions of
the ACJA, some states have attempted a subtle enactment on “other
matters” including evidence. This is the precarious position of
Section 300 (3) of the ACJL of Delta State.
One must note that Section 1 (3) of the
constitution makes the constitution supreme and stipulates that any
law inconsistent with the constitution must to the extent of its
inconsistency be null and void. See. Towoju v. Gov. Kwara
State (2006) ALL FWLR (Pt. 321) 1365 at 1389 (CA).
Therefore, whenever a State House of Assembly legislates on any
matter outside its legislative competence the act is ultra vires
and any law proceeding from it shall be deemed inconsistent with
the constitution, null and void to the extent to which it is
inconsistent.
SECTION 300(3) OF THE ACJL OF DELTA STATE IS A MATTER OF
EVIDENCE AND CANNOT BE LEGISLATED BY A STATE HOUSE OF
ASSEMBLY
As a preliminary point, it is incisive to note that the
provisions of Section 300(3) of the ACJL of Delta State is not
similarly contained under the ACJA 2015 which the law sought to
replicate. The inclusion of Section 300(3) in the Delta State Law
was therefore an independent act by the State’s House of Assembly
to address the issue of delayed trial occasioned by the conducting
of a trial-within-trial when a confessional statement is objected
to on the ground of involuntariness. The Assembly in undertaking
this noble cause however ended up enacting a provision which
clearly over-reached the State’s legislative limits under the
constitution by conspicuously legislating upon evidence. The said
Section 300(3) provides that:
“In the course of any criminal trial, where the
admissibility of any confessional statement is objected to by a
defendant on the ground of involuntariness, the Court shall note
the objection and the ground for the objection thereon and make a
decision in its judgement at the end of the trial without
conducting a trial within trial”.
The provision clearly touches on evidence in judicial
proceedings which, according to item 23 of the Exclusive
Legislative List, is a matter exclusively within the legislative
competence of the National Assembly. This is particularly so as
Section 29(2) of the Evidence Act 2011 already
makes provision on the exact issue and states the duty of the trial
judge when an Accused person challenges the voluntariness of a
confessional statement thus:
“(2) If, in any proceedings where the prosecution proposes
to give in evidence a confession made by a defendant, it is
represented to the court that the confession was or may have been
obtained –
- by oppression of the person who made it; or
- in consequence of anything said or done which was likely,
in the circumstances existing at the time, to render unreliable any
confession which might be made by him in such consequence,
the court shall not allow the confession to be given in
evidence against him except in so far as the
prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may
be true) was not obtained in a manner contrary to the provisions of
this section.
Apparently, Section 29 of the Evidence Act and
Section 300(3) of the Delta State ACJL stipulate
different positions on the court’s duty when a Defendant objects to
a confessional statement as involuntary. There cannot be two
provisions on the same issue of “evidence” which conflict each
other, particularly since the later was enacted by the State House
of Assembly obviously lacking vires to so enact. The provision of
Section 300(3) cannot be saved by any thought of argument that is a
mere “domestication” of the ACJA on the issue since same provision
is not in Section 300 of the ACJA. In effect, Section 300 (3) of
the ACJL of Delta State is ultra vires the legislative powers of
the Delta State House of Assembly, inconsistent with the
constitution and to the extent of its inconsistency is null and
void.
IN CONCLUSION
The curious position under Section 300 (3) of the ACJL of Delta
State is one which can be carefully avoided in ACJLs of respective
States. While the administration of crime is a concurrent matter
which both federal and state legislature can legislate over,
evidence is a matter exclusively within the legislative territory
of the National Assembly. State Houses of Assembly must therefore
note that they cannot attempt to amend the Evidence Act by the
provisions of their respective State ACJLs. What can be done
however is regulate proceedings in court which do not deal with
evidence in itself but procedures in criminal proceedings. The ACJL
of Lagos State is recommended as veritable guide on how to
carefully carry out this difficult legislative task in other to
avoid provisions which may be too quickly declared null and
void.
Oliver Omoredia Esq.
Associate Obiagwu & Obiagwu
LLP
08100193573, oliveromoredia@yahoo.com