Administration Of Criminal Justice In Nigeria (3) By Ebun-Olu Adegboruwa, Esq

We have so far examined the innovations that the Administration
of Criminal Justice Act, (ACJA) 2015, has brought to our criminal
justice administration generally, and how far the system has fared
thereby. It is now time to take a holistic look at interlocutory
proceedings and interlocutory appeals, in criminal matters.

Interlocutory proceedings or interlocutory appeals are temporary
proceedings or processes conducted or filed, during the progress of
a legal action and they are not final or definitive. They are
preliminary matters which at times require judicial resolutions
before proceeding to tackle the main case. In criminal cases, it
could relate to the competence of the charge, the judicial venue,
admissibility, trial within trial or such other matters of
immediate concern in the life of the case. Depending on their
nature, they may or may not end the case. Three sections of ACJA
2015 have so far raised concerns on interlocutory proceedings and
interlocutory appeals.

Section 221 provides that “objections shall not be taken or
entertained during proceeding or trial on the ground of an
imperfect or erroneous charge”, section 396 (2) allows the court to
take objections but defer its ruling till final judgment, whilst
section 306 states that “an application for stay of proceedings in
respect of a criminal matter before the court shall not be
entertained”. The focus of these provisions is to achieve effective
and timely determination of criminal cases and to avoid delays, in
the course of trial. These sections are prohibitive in nature, in
so far as they seek to gag the defendant in particular, from
exercising his right to question the proceedings or have his appeal
determined, meritoriously. Be that as it may, they are bold
attempts made to address the hydra-headed issue of delay in
criminal justice administration. However, such efforts must be
carefully executed so that they are not counter-productive, in the
end. Surely there should be no room for objections meant purely to
delay the hearing of the case, where a defendant seeks to deploy
that to escape his due trial, by frustrating the prosecution. In
some cases, by the time the case comes back on appeal, the
witnesses may have died or become compromised totally. But as it
has now been held by the Court of Appeal in the recent case of
Ibrahim Buba Shema v Federal Republic of Nigeria, where such
objection goes to the root of the case, it should be taken and
decided preliminarily, as a court should not proceed on a trial
where for instance, it lacks the jurisdiction to entertain the case
itself, or where the case against the defendant, is manifestly
unsustainable.

In Shema’s case, the defendant filed a motion to quash the
charges against him, on the ground that they amount to abuse of the
process of court, in that the said charges and the evidence
furnished in proof, do not disclose any prima facie case against
him. The learned trial court took the objection but deferred its
ruling and continued with the case, relying upon the provisions of
section 396 (2) of ACJA, which permits such objection to be
considered along with the substantive issues in the course of the
final judgment. On appeal, the Court of Appeal made a clear
distinction between objections on forms and those on jurisdiction,
the latter for which a ruling must be rendered before proceeding
further with the substantive matter.

An order for a stay of proceedings in any case, civil or
criminal, should be a matter of discretion for any court, if it is
to be allowed the statutory powers to be the master of its own
proceedings. Section 6 of the Constitution clearly gives the court
the power of adjudication and that power should not be hindered in
any way at all, by any other subordinate legislation. The fear of
all is about the abuse to which this power has been subjected to by
lawyers and litigants. But this should be not a reason to gag both
the court and the parties before it. Furthermore, the Constitution
and the Court of Appeal Act, both donate a right of appeal against
interlocutory decisions of the trial court. Indeed, section 36 (4)
of the Constitution grants the right to fair hearing to the
defendant, in all criminal cases, whereas Article 7 (1) (d) of the
African Charter on Human and People’s Rights prescribes that all
citizens should have the right to exhaust their grievances to the
highest court of the land. In this regard, ACJA cannot be right to
prohibit fundamental objections or stay of proceedings or indeed
prohibit the court from hearing certain applications.

Presently in Nigeria, we have seen that the problem of delay in
criminal justice administration is a combination of several
factors, such as lack of funding of the judiciary, whereby we still
have the same number of courts, to handle the upsurge in crimes and
criminalities. Then there is also the issue of absence of
infrastructure and facilities, such as where the court is sitting,
lawyers are ready and waiting to proceed with the case, but there
is no vehicle to convey the suspect from prison custody to the
court to stand his trial, or where at times the suspect is
available but there is no power supply to the courtroom and the
case is adjourned for that reason alone. In some other cases, the
investigating police officer is not available, whether due to other
official duties or outright transfer away from the jurisdiction of
the trial court. However, the most prevalent of these factors is
that of lack of judicial personnel to handle the deluge of cases
being heaped upon the courts on a daily basis. All these cannot be
cured by ACJA.

In cases where the defendant is buoyant enough to foot the legal
bills, to compile his own records and to expedite the hearing of
the appeal, interlocutory appeals and stay of proceedings have no
negative impact upon criminal cases. In the case of Senator Bukola
Saraki v Federal Republic of Nigeria, the period of arraignment,
objections, stay of proceedings and the appeals to the Court of
Appeal and indeed the Supreme Court was less than one year. In
election petitions and political cases, the entire proceedings are
to be determined within 180 days, making it even needless to apply
to stay the proceedings. The point here is that there is nothing
untoward in staying proceedings pending an interlocutory appeal, if
the parties are serious about prosecuting the appeal and not just
as a mean of stalling the case.

The judicial officer must be allowed some measure of judicial
discretion in determining whether or not to hear preliminary
objections or stay further proceedings pending appeal. This is
moreso because we may not isolate just one of the causes of delay
in criminal justice administration whilst ignoring the others. If
the court declines to take any preliminary objection, if the court
refuses to grant any order for a stay of further proceedings, in
order to aid effective trial but the suspect is not produced from
custody, will the case not be stalled still? Suppose the court has
made all efforts to have the matter heard but it has about ten of
such cases for trial on the same day, will the matter not still be
stalled? The search for effective criminal justice administration
should therefore be holistic, so that we do not achieve success in
one angle and then failure in other areas still holds us down.
Criminal cases should generally be given priority attention, given
that the life and liberty of the defendant are involved and the
cost to society, of the criminal act and its prosecution. In this
regard therefore, sections 221, 306 and 396 (2) are well
appreciated but they cannot work in isolation of other relevant
factors, to achieve smooth administration of the criminal justice
system.

What then can be the solution? It is as stated by the court of
appeal in Shema’s case, namely that we cannot annul judicial
discretion by legislation. Lawyers, litigants and the courts must
do all to cooperate with the spirit of effectiveness behind the
promulgation of ACJA, 2015. We must distill fundamental objections
from the frivolous ones that are meant just to tie the case and
give the defendant some time to filibuster. Once when a brief is
handed down, most clients would readily indicate the real state of
affairs to their counsel. Dignity and honour would then posit that
where a suspect is manifestly culpable of the offences alleged
against him or his defence thereof will prove truly herculean, then
patriotism demands that counsel should properly guide him on the
options available, especially now that the process of plea bargain
has been well codified. We cannot use the liberty of the
constitutional right of appeal to frustrate the due trial of
indicted suspects, when other factors are ripe for due
prosecution.

As it is now, ACJA is standing alone like an orphan, in its
efforts to achieve speedy dispensation of criminal justice, and it
is being held down by lack of adequate funding for the judiciary,
it is being frustrated by congestion of cases in the courts, it is
being hindered by the sorry state of decay of infrastructure in the
courts and absence of sufficient manpower and facilities for
thorough investigation and due prosecution. It is a great piece of
legislation, which has been given teeth just for display but lacks
the capacity to bite, for impact.