“The President shall rank equal to a Justice of the Supreme
Court and the other Justices of the Court of Appeal rank next to
the Justices of the Supreme Court and equal to the Chief Judge of
the Federal High Court”.
This shows that Justices of the Court of Appeal are superior to
the judges of the High Court/Federal High Court. They can upturn
their judgments. The hierarchical structure of Nigerian superior
courts identified in section 6 of the Constitution is inviolate and
immutable. It is to enable justice travel on its legs from the High
Court/ Federal High Court, to the Court of Appeal, and then to the
Supreme Court. Indeed, the Court of Appeal does not hear and
determine criminal cases by calling witnesses viva voce, or writing
lone Judgments. This is amplified by sections 15, 18, 19 and 26 of
the Court of Appeal Act.
It is humbly submitted that once a judicial officer has been
elevated to a higher court, he immediately and automatically shreds
the toga of his original status as a Judge of the lower Bench. He
ceases equality with this former peers who were not so elevated. He
becomes a new creature. He dorns the garment of 2 Corinthians
5:17.
“The old things have passed away, behold, the new has come into
being if then any be in Christ, he is a new creature: old things
are passed away, behold all things are become new”. The hallowed
chambers and court precincts of his former court become forbidden
zones of operation, having subscribed to the oath of office of his
new position.
Aside the 7th Schedule to the Constitution, section 290(1)
thereof prohibits a person appointed to judicial office from
performing the duties of his office until he has first declared his
assets and liabilities as prescribed by the Constitution. He must
also subsequently take and subscribe to the Oath of allegiance and
the judicial Oath. The said judicial oath can be found in the 7th
Schedule as follows:
“I, …… do solemnly swear/affirm that I will be faithful and bear
true allegiance to the Federal Republic of Nigeria; that as Chief
Justice of Nigeria/Justice of the Supreme Court/President/Justice
of the Court of Appeal/Chief Judge/Judge of the Federal High
Court/Chief Judge/Judge
of the High Court of the Federal Capital
Territory, Abuja/Chief Judge of …… State/ Judge of the High
Court of …… State/Grand Kadi/Kadi of the Sharia Court of Appeal of
the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia
Court of Appeal of …. State/President/Judge of the Customary Court
of Appeal of the Federal Capital Territory, Abuja/President/Judge
of the Customary Court of Appeal of ……… State. I will discharge my
duties, and perform my functions honestly, to the best of my
ability and faithfully in accordance with the Constitution of the
Federal Republic of Nigeria and the law, that I will abide by the
Code of Conduct contained in the Fifth Schedule to the Constitution
of the Federal Republic of Nigeria; that I will not allow my
personal interest to influence my official conduct or my official
decisions; that I will preserve, protect and defend the
Constitution of the Federal Republic of Nigeria.
So help me God”.
It amounts to a grave contradiction in terms for any judicial
officer who has subscribed to the judicial Oath as Justice of the
Court of Appeal to literally have a free fall and descend to the
lower court to hear uncompleted, but pending cases. Such an act is
not only illegal and unlawful, it is unconstitutional, null and
void.
In the case of CHUKWUMA V. NWONYE (2009) LPELR 4997 (CA), the
intermediate court stamped imprimatur as follows:
“Oath is defined as “a solemn declaration, accompanied by a
swearing to God or a revered person or thing, that one’s statement
is true or that one will be bound to a promise.” The implication or
legal effect therefore of an oath is to subject the person who took
an oath to penalties for perjury in the event that the testimony
turns out to be false.” Per ARIWOOLA, J.C.A (Pp. 12-13, paras.
A-B)”.
Importance of jurisdiction
For the avoidance of doubt, jurisdiction is the spinal cord and
live wire of any court proceedings. Where the court lacks
jurisdiction, the entire trial however beautifully conducted,
evaporates into shambles, becomes a total nullity and is consigned
to the vehicle of judicial oblivion.
In the case of NDIC V. CBN & ANOR (2002) LPELR-2000(SC), the
apex court held as follows:
“Jurisdiction is the very basis on which any tribunal tries a
case; it is the lifeline of all trials. A trial without
jurisdiction is a nullity…. This importance of jurisdiction is the
reason why it can be raised at any stage of a case, be it at the
trial, on appeal to Court of Appeal or to this court; a fortiori
the court can suo motu raise it. It is desirable that preliminary
objection be raised early on issue of jurisdiction; but once it is
apparent to any party that the court may not have jurisdiction, it
can be raised even viva voce as in this case. It is always in the
interest of justice to raise issue of jurisdiction so as to save
time and costs and to avoid a trial in nullity.’’ Per UWAIFO,
J.S.C. (Pp.16-17, paras. G-B)”.
Similarly, in the case of AKERE & ORS. V. THE GOVERNOR OF OYO
STATE & ORS. (2012) LPELR-7806(SC), apex court further buttressed
on this issue as follows:
“The overriding importance of jurisdiction cannot be overstated.
It is the life blood of any litigation before a Court
properly so-called. It is so fundamental that when a Court has
no jurisdiction, any action taken by that Court will be a nullity
notwithstanding the fact that the proceeding was well conducted.
See Osakue v. Federal College of Education Asaba & Anor (2010) 5
SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt.
4) 587 for the principles which define the jurisdiction or
competence of a Court to entertain a particular matter.” PER NG-
WUTA, J.S.C. (Pp.23-24, Paras. G-C)”.
In the causa celebre on jurisdictional issues, MADUKOLU V.
NKEMDILIM 2 SCNLR 341, (1962) 1 ANLR (Pt. 4) 587, the apex court
laid down the following conditions which must be wholly present
before a court can be deemed to here jurisdiction:
(a) it is properly constituted with respect to the number and
qualification of its members;
(b) the subject matter of the action is within its
jurisdiction;
(c) the action is initiated by due process of law and
(d) any condition precedent to the exercise of its jurisdiction
has been fulfilled.’ What the ACJA in section 396(7) has
audaciously, but vaingloriously attempted to do is, rather than
blow muted trumpet and defer to a superior law, ie, the
Constitution, the fons est origo, the grundnorm and the “Kabiyesi”,
“Eze” and “Emir” of our laws, it seeks to torpedo the Constitution
itself. Such a law as the ACJA must suffer
a merciless strike down under section 1(3) of the said
Constitution. The ACJA has no powers to grant dual citizenship to a
judicial officer as both Judge of the High Court/ Federal High
Court and Justice of the Court of Appeal.
It is akin to the bat that claims to be a mammal (of the order
of Chiroptera), because it has teeth, ears, mammary glands,
produces milk to feed its young and with forelimbs like all animals
do. It simultaneously claims to be a bird because it can fly like
all birds.
The sore question that begs for an answer is whether a Judge of
the High Court or Federal High Court lawfully and legally elevated
to the Court of Appeal can still maintain dual status and exercise
dual judicial powers over cases in both the Court of Appeal (as a
Justice) and the High Court or Federal High Court (as a Judge).
This cannot be so.
It is humbly submitted that any elevated judge having lost the
toga of being a Judge of the High Court or Federal High Court, the
proper thing for him to do is for such Justice of the Court of
Appeal to recuse himself, send the case file back to the Chief of
the High Court or Federal High Court, to be reassigned to another
judge of the said High Court or Federal High Court, in line with
section 253 of the Constitution, which provides for the
constitution of the Federal High Court. Such a Judge must, like
Pontius Pilate, wash his hands off the case, to prevent being
accused of undue and special interest in such a matter. The mere
suspicion by a litigant that he is being “tried” at the trial court
by a Justice of the Court of Appeal who lacks judicial competence
to do so is sufficient for such a judge to recuse himself.
Afterall, justice is rooted in confidence.
To be continued