Validity Or Otherwise Of Elevated Judge Continuing Case At Lower Court (I)

By Mike Ozekhome

The question that begs for answer is whether, a judge,
having been elevated to the Court of Appeal, can still sit to try
cases at the High Court or Federal High Court

It is no longer news that many judges who have been elevated to
the Court of Appeal from the various High Courts and Federal High
Courts across Nigeria are still continuing with the hearing of
matters that were part heard before their elevation. What is,
perhaps, not known to most Nigerians is that such judges were
actually, on June 22, 2018, elevated to the Court of Appeal from
the said lower courts.

In insisting on trying such part heard matters at all cost, come
sun, come rain, the judges are perhaps relying on section 396(7) of
the Administration of Criminal Justice Act (ACJA), which came into
effect on May 13, 2015. The section, which was passed, perhaps in
good faith, to prevent prolonged cases being heard de novo,
provides as follows: “Notwithstanding the provision of any other
law to the contrary, a judge of the High Court who has been
elevated to the Court of Appeal shall have dispensation to continue
to sit as a High Court judge, only for the purposes of concluding
any part-heard criminal matter, pending before him at the time of
his elevation and shall be concluded within reasonable time,
provided that this section shall not prevent him from assuming duty
as a Justice of the Court of Appeal.”

The question that begs for answer is whether, a judge, having
been elevated to the Court of Appeal, can still sit to try cases at
the High Court or Federal High Court, relying on section 396(7) of
the ACJA. Our humble answer is in the negative. For starters,
section 397(7) ACJA appears to be a frontal attack and violation of
sections 238(2), 240, 250(2) and 253 of the Constitution of the
Federal Republic of Nigeria, 1999, as altered and decided cases on
the subject matter. To that effect, the section is null and void by
virtue of section 1(1) and section 1(3) of the said 1999
Constitution, which provide as follows:

1) The Constitution is supreme and its provisions shall have
binding force on all authorities and persons throughout the Federal
Republic of Nigeria.

2) If any other law is inconsistent with the provisions of the
Constitution, this Constitution shall prevail and that other law
shall to the extent of the inconsistency be void.” See the cases of
AG ABIA STATE VS AG FED. (2002) 6 NWLR (PT. 763) 204 and ABACHA VS
FAWEHINMI (2000) 4 SC (PT. 11), PAGE 1.

By virtue of section 6 of the 1999 Constitution, as altered, the
judicial powers of the federation are vested in the courts of law
as established by the Constitution. By section 6(5) thereof, the
Court of Appeal is created as one of the superior courts of record.
The jurisdiction of the Court of Appeal is as provided for in
sections 238 – 240; with section 248 giving the president of the
Court of Appeal powers to make rules regulating the court’s
practice and procedure.

By virtue of sections 239 and 240 of the Constitution, the
original and appellate jurisdiction of the Court of Appeal to which
these judges have been elevated since June, 22, 2018, do not extend
to

the hearing or trial viva voce, of criminal matters pending
before the High Court or Federal High Court. Section 239 deals with
its original jurisdiction, and it provides as follows:

“Subject to the provisions of this Constitution, the Court of
Appeal shall, to the exclusion of any other court of Law in
Nigeria, have original jurisdiction to hear and determine any
question as to whether –

Any person has been validity elected to the office of President
of Vice President under this Constitution; of the term of office of
the president or Vice President has ceased; or the office of
President or Vice President has become vacant.”

Section 240 of the Constitution of the Federal Republic of
Nigeria, 1999, as altered, on the other hand, which deals with the
appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of
Appeal shall have jurisdiction to the exclusion of any other court
of law in Nigeria, to hear and determine appeals from the Federal
High Court, the National Industrial Court, the High Court of the
Federal Capital Territory, Abuja, High Court of a State, Sharia
Court of Appeal of the Federal Capital Territory, Abuja, Sharia
Court of Appeal of a State, Customary Court of Appeal of a State
and from decisions of a court martial or other tribunals as may be
described by an Act of the National Assembly.”

It is incomprehensible why trial judge would insist on
continuing with part heard matters six whole months after their
colleagues with whom they were sworn in and with whom they took
oath of office as justices of the Court of Appeal should still
descend to the lower Bench and belittle themselves by answering the
title “judge of the High Court” or “judge of the Federal High
Court,” when their appropriate title has since changed to “justices
of the Court of Appeal”, since June 22, 2018, when they vacated
their High Court or Federal High Court seats upon elevation to the
Court of Appeal.

The Federal High Court that still harbours some these promoted
judges has sections 251 and 252 dealing with its jurisdiction;
whilst sections 249-254 deal with appointment of its judicial
officers. By virtue of section 253 of the Constitution, “the
Federal High Court shall be duly constituted if it consists of at
least one judge of that court.” This means that no justice of the
Court of Appeal shall climb down from his exalted position to
assume duties as one of the judges of the Federal High Court, for
the purpose of trying a charge.

The Court of Appeal, on the other hand, has section 239(2)
guiding its composition. It provides that the Court of Appeal shall
be duly constituted if it consists of at least three justices of
the Court of Appeal.” This means, for example, that no justice of
the Court of Appeal shall exercise the judicial powers donated to a
judge of the Federal High Court as envisaged in sections 251 & 252
of the Constitution, he not being a judge of the said court as
provided for in section 253 of the Constitution. The original and
appellate jurisdiction of the Court of Appeal as provided for in
sections 239 and 240 of the Constitution, respectively, do not
extend to the hearing of criminal matters at the High Court or
Federal High Court, in its original jurisdiction.

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