Are judges, lawyers undermining ACJA provisions? – TheNigerialawyer

The Administration of Criminal Justice Act (ACJA) 2015
provides strict time-lines for criminal trial proceedings and a
limited number of adjournments. However, these provisions are
rarely complied with. Deputy News Editor JOSEPH
JIBUEZE highlights instances of such violations and
speaks to experts on the way out.

Some recommendations

• Expand magistrates’ courts’ jurisdiction
• Appoint more judges
• Provide conducive environment/adequate infrastructure
• Recruit more prosecutors to minimise workload
• Provide adequate resources for ACJA implementation
• Carry out holistic reform of the justice sector
• Designate more courts to handle only criminal cases
• Create special corruption courts
• Amend the constitution give bite to ACJA provisions
• Deploy technology to speed up court processes
• Increase funding

A STRONG tap behind the door connecting the judge’s chambers to
the courtroom alerted lawyers and litigants that he was ready to
sit.

‘Court!’ bellowed the registrar as everyone rose.

Justice Rilwanu Aikawa walked in, took a bow and sat.

A high profile case involving two former ministers was called
for trial to begin. But it could not go on. Why?

The second defendant, former Aviation Minister Chief Femi
Fani-Kayode, was absent. His lawyer informed the court that his
client was “indisposed.”

Rather than adjourn to the following day as required by law, the
judge shifted the case for 16 working days.

Fani-Kayode has been on trial with former minister of state
(finance) Mrs Nenadi Usman since 2016. They were key members of the
Goodluck Jonathan Presidential Campaign Organisation in 2015. 
Fani-Kayose was in charge of publicity; Usman was in charge of
finance.

The Economic and Financial Crimes Commission (EFCC) arraigned
both on June 28, 2016 before Justice Muslim Hassan of the Federal
High Court in Lagos for alleged money laundering.

However, the case, like several others, is yet to be
decided.

This is partly due to non-compliance with Section 396 of the
Administration of Criminal Justice Act (ACJA) 2015.

Section 396 (3) (4) (5) and (6) of the ACJA provides: “Upon
arraignment, the trial of the defendant shall proceed from
day-to-day until the conclusion of the trial.

“Where day-to-day trial is impracticable after arraignment, no
party shall be entitled to more than five adjournments from
arraignment to final judgment provided always that the interval
between each adjournment shall not exceed 14 working days.

“Where it is impracticable to conclude a criminal proceeding
after the parties have exhausted their five adjournments each, the
interval between one adjournment to another shall not exceed seven
days inclusive of weekends.

“In all circumstances, the court may award reasonable costs in
order to discourage frivolous adjournments.”

A review of the Fani-Kayode/Usman case shows non-compliace with
the provisions of Section 396.

They pleaded not guilty to a 17-count charge of laundering about
N4.6billion.

They were charged along with former Chairman, Kagarko Local
Government Area, Kaduna State, Yusuf Danjuma and a company,
Jointrust Dimentions Nigeria Limited.

Midway into the trial before Justice Hassan, Fani-Kayode accused
the judge of bias.

He claimed that the judge, being a former Head of EFCC’s Legal
Department, would not be fair to him.

Consequently, Justice Hassan, on March 16, 2017, recused
himself. Between arraignment and Justice Hassan’s recusal, nearly
nine months passed.

On May 15, 2017, Fani-Kayode and his co-accused were
re-arraigned before Justice Aikawa.

Rather than ordering day-to-day trial in line with Section 396,
Justice Aikawa adjourned until June 7, a period of 16 days working
days.

Afterwards, Fani-Kayode challenged the court’s territorial
jurisdiction. The development stalled the trial on June 7, 2017 and
the application was heard on June 21, 2017.

For over 79 days, no trial was held as the case was adjourned
for ruling.

On September 26, 2017, Justice Aikawa refused Fani-Kayode’s
prayer to transfer the case to Abuja.

The case has since suffered several other ACJA violations. For
instance, on December 5, 2017, Mrs Usman got an adjournment to
enable her travel abroad to treat “breast cancer”. The case was
adjourned until January 31, 2018, for 42 working days.

On January 31, 2018, Fani-Kayode was absent. His lawyer, Mr
Norrison Quakers (SAN), told the court that the defendant
complained about “heart-related pain”.

The case was adjourned until February 28, 2018, a period of 23
working days.

Trial held on February 28, February 29, March 1 and March 2,
2018, after which the case was adjourned until June 11, 2018 for 70
working days.

On June 11, the court heard that Mrs Usman filed an application
seeking to cite minister of information Lai Mohammed for contempt
for publishing her name as a looter.

Meanwhile, the trial could not proceed that day because a
pregnant prosecution witness was said to be on bed rest.

Justice Aikawa adjourned until October 2, 2018, a period of 82
days, although the intervening period included the court’s annual
long vacation.

Mrs Usman’s lawyer, Chief Ferdinand Orbih (SAN), argued that the
application ought to be heard before trial could proceed. On
October 2, 2018, the contempt application was heard.

The case was adjourned until November 16, 2018 for ruling. No
trial held during the 33 working days in-between.

On November 16, Justice Aikawa dismissed the contempt
application against Lai Mohammed.

Twenty-five working days later when the case resumed on January
24, Chief Orbih and Mr Abiodun Owonikoko (SAN) were absent.

The development forced an adjourned until February 4 and 5. The
case came up on both days, and was adjourned until February 20 and
21.

On February 21, Mrs Usman was granted permission to travel
overseas for medical treatment. The case was adjourned until March
15.

On May 2, the trial was stalled because Danjuma was absent. His
lawyer told the court that the defendant collapsed in the bathroom
and was hospitalised.

On May 14, EFCC sought to tender some statements made by
Fani-Kayode and Usman through a witness, but defence counsel
opposed it, contending that they wrote the statements under
duress.

The case was adjourned until May 31, but Fani-Kayode was absent
that day. He was said to be “indisposed”.

Justice Aikawa adjourned until June 24, 2019 for 16 working
days. That day, he dismissed the objections and adjourned until
July 4 for continuation of trial.

On July 4, after an EFCC investigator Shehu Shuaibu testified,
Justice Aikawa adjourned until October 29, 2019 for continuation of
trial.

The court began its annual long vacation on July 8, and resumed
on September 16.

Fani-Kayode and Usman’s trial will resume 32 working days after
the court’s vacation ended.

Yet, without a final judgment, the case has dragged on for 829
working days.

Is section impracticable?

Legal experts have attributed the non-compliance with the ACJA
provision to a number of factors, such as docket congestion, and
insufficient number of judges and prosecutors.

Former Chief Justice Walter Onnoghen had directed heads of
courts to designate some courts to handle solely criminal
cases.

But it was observed that while a few judges handle most of the
corruption cases, such courts are still burdened with commercial
and civil cases.

A former Nigerian Bar Association (NBA) President, Chief Wole
Olanipekun (SAN), believes that day-to-day hearing of cases is not
practicable.

He has been involved in several high profile criminal cases, and
led the team that represented former Chief Justice Onnoghen at the
Code of Conduct Tribunal (CCT).

He said ACJA does not take into consideration Nigeria’s
infrastructure and human resource challenges.

He said: “While promulgating the ACJA, the National Assembly, in
my humble view, did not consider the realities of our legal and
court environment.”

He said the National Assembly adopted the Lagos State version of
the law without soberly reflecting on whether it could work in
Nigeria.

“How do we expect a judge who has a minimum of 30 cases on his
cause-list in one day – both civil and criminal – to comply with
the unrealistic provisions of Section 396(3)(4)(5) of the ACJA?

“Can the judge turn himself to the Biblical Joshua who commanded
both the sun and moon from moving until he completed his
assignment? Are the other criminal and civil cases before the judge
not equally important?

“Do we have enough judges on ground to implement these grandiose
provisions? Are the courtrooms available?

“Note that most of the courtrooms where Nigerian judges sit to
administer justice are not good for human habitation.

“Even if the courtrooms are available, what of other
wherewithal, including regular electricity supply, audio recording
of court proceedings, security personnel, etc?” Olanipekun
asked.

The numbers

No fewer than 116, 623 cases are pending in the 36 divisions of
the Federal High Court as at June 2019. They include 37,228 civil
cases, 30,529 criminal cases, 33,564 motions and 15,302 fundamental
rights cases.

There are 10,108 cases pending in the Lagos Division alone as at
June 2019. Twelve judges sit in the Division.

They are Justices John Tsoho (Acting Chief Judge, Court One),
Mojisola Olatoregun (Court Two), Abdullah Liman (Court Three),
Saliu Saidu (Court Four), Ayokunle Faji (Court Five) and Rilwanu
Aikawa (Court Six).

The rest are Maureen Onyetenu (Court Seven), Chukwujekwu Aneke
(Court Eight), Oluremi Oguntoyibo (Court Nine), Chuka Obiozor
(Court 10), Nicholas Oweibo (Court 11) and Muslim Hassan (Court
12).

Annual returns of cases at the Lagos Division as at June 2019
shows that there are 191 pending cases in Court One, including 56
civil cases, 37 criminal cases, 84 motions and 14 fundamental human
rights matters.

In Court Two, 249 cases are pending, including 120 civil suits,
36 criminal matters and 13 fundamental human rights actions.

In Court Three, 702 cases are pending: 409 civil, 146 criminal,
18 motions and 129 fundamental rights cases.

Court Four has 866 pending cases, of which 357 are civil, 144
criminal, 252 motions and 113 human rights matters.

Court Five has 1,452 cases, comprising civil, 199; criminal,
243; motion, 833 and fundamental human rights, 186.

Court Six has 1,260 pending cases. Civil cases are 424;
criminal, 296; fundamental human rights, 307 and motion, 233.

Court Seven has 1,602 pending cases, including civil, 551;
criminal, 147; motion, 561 and fundamental rights, 343.

In Court Eight, a total of 714 cases are pending, comprising 84
civil actions; 77 criminal cases, 534 motions and 19 fundamental
rights cases.

In Court Nine, 839 cases are pending, including 618 civil
actions, 122 criminal matters, one motion and 98 fundamental human
rights suits.

Court 10 has 508 pending cases. They include 189 civil cases,
114 criminal matters, 204 motions and one fundamental rights
case.

In Court 11, there are 1,215 pending cases, of which 94 are
civil, 102 are criminal, 958 are motions and 61 are on fundamental
human rights.

Court 12 has 510 pending cases. They include civil (167),
criminal (56), motion (192) and fundamental human rights (95).

The Chief Judge performs mainly administrative functions from
the court’s headquarters in Abuja and does not sit daily in
Lagos.

Justice Onyetenu was deployed to the Election Petition Tribunal,
meaning all the cases before her must wait until she returns.

Court sources say day-to-day hearing of criminal cases is not
realistic considering the number of cases each judge deals
with.

For instance, in Justice Aikawa’s court where there are 1,260
cases (the third highest), it will take him nearly three months to
hear all the cases, and he must hear at least 18 cases per day.

Approximately 85 cases are said to be filed in the Lagos
Division’s registry weekly. In effect, about 2,380 cases are added
to the already congested docket monthly.

Assuming the cases are assigned to the judges equally, it means
each judge will have over 200 cases added to their docket
monthly.

Deputy Registrar in charge of Administration and Litigation,
Christine Ende, confirmed the figures, but referred our
correspondent to the information unit.

The information unit explained why it is difficult for judges to
comply with Section 396.

It said: “The constitution allows for a maximum of 100 judges
for the Federal High Court. Presently, the court has 83 judges.

“Many factors are considered in the appointment of judges, such
as housing, offices, vehicles, etc. The court’s budgetary
allocation has been going down due to yearly cuts.

“The Lagos Division has greater work. The ongoing construction
of 20 courtrooms in Lagos has not been completed due to poor
funding.

“However, to achieve speedy trial, there is need for a
constitutional amendment. Don’t forget that the ACJA 2015 spells
out how criminal cases should be conducted.

“Some lawyers rely on the constitutional provision for fair
hearing to delay cases. Sometimes, when judges stand firm, they are
accused of bias.”

Other instances of violations

In several high profile criminal cases, recourse is never made
to Section 396 during adjournments.

Such breaches were also observed in the trial of former Chief of
Air Staff Air Marshal Adesola Amosu.

He is on trial with former Nigeria Air Force (NAF) Director of
Finance and Budget Air Commodore Olugbenga Gbadebo and former NAF
Chief of Accounts and Budgeting Air Vice Marshal Jacob Adigun.

EFCC arraigned them on June 26, 2016 for allegedly converting
N21billion from NAF to their personal use. They pleaded not
guilty.

Plea bargain talks failed and trial started before Justice
Mohammed Idris, but it did not hold day-to-day as required by the
ACJA.

Prosecuting counsel Rotimi Oyedepo, on October 24, 2016, accused
the defence of delaying the trial.

Defence counsel Norrison Quakers (SAN) once sought an
adjournment because he needed to cross-examine a witness based on
documents in EFCC’s possession.

When Oyedepo offered to produce the documents in court to save
time, the defence counsel refused to accept them, insisting they
preferred to apply formally to EFCC after paying the prescribed
fees.

Justice Idris adjourned until November 23, 2016, a period of 22
working days.

After a witness testified on December 15, 2016, the court
adjourned until January 25 and 26, 2017, a period 24 working days
excluding the week-long Christmas break.

Justice Idris, after the January 26 proceedings, adjourned until
February 22, which was 19 working days.

Justice Idris made effort to ensure that trial held for at least
three consecutive days before another long adjournment.

Following Justice Idris’ elevation to the Court of Appeal in
June 2018, the case was re-assigned to Justice Chukwujekwu
Aneke.

On October 15, 2018, the defendants were re-arraigned, but there
was no day-to-day trial afterwards.

After a witness testified on March 7, Justice Aneke adjourned
until April 15 and 16 – a period of 27 working days.

After the April 16 proceedings, Justice Aneke adjourned until
May 22 and 23, which came to another 27 working days.

On May 22, defence counsel informed the court that plea bargain
talks had resumed.

Justice Aneke adjourned until July 4 “for report of effort at
plea bargaining”. The adjournment interval was 31 working days.

On July 4, Oyedepo and defence counsel traded blames over their
inability to hold the plea bargaining talks.

Justice Aneke further adjourned until October 9, which comes to
18 working days after the court’s September 16 resumption date.

In all, about 103 working days have been wasted since the case
was re-assigned to Justice Aneke due to failure to comply with the
day-to-day trial requirement.

Consequences of violations:

Due to the failure to comply with Section 396, some cases which
began after the law was enacted in 2015 have been transferred to
new judges to begin de novo (afresh) due to elevation or transfer
of judges.

Observers believe such loss of time could have been avoided had
the trials been held day-to-day.

Cases involving former Federal Capital Territory Minister Jumoke
Akinjide,

Senator Peter Nwaoboshi and former Ekiti State Governor Ayo
Fayose suffered such fate. Witnesses will be recalled before the
new judges.

It has also been observed that judges rarely award costs as
required by the law to deter frivolous adjournments.

Joseph Otteh, Convener of Access to Justice, a leading NGO in
justice sector, said the provisions of Section 396 have effectively
become “nearly dead letter laws.”

He noted that some defendants are adept at stretching the trial
process to breaking point by exploiting the procedure
loopholes.

Otteh said: “As a practitioner, I’ve observed that these
limitations are hardly referenced by courts and counsel in
determining the next adjournments.”

According to him, it is difficult to take multiple witnesses
daily when the docket is filled with other cases.

Otteh added: “We must make it more difficult to bring frivolous
charges against people. This can help reduce dockets.

“We’ve got to eliminate man-made factors – courts not sitting
because judges are attending a valedictory session, or are mourning
a colleague or representing the Chief Judge at some ceremonial
function, etc,”

A prosecutor’s perspective

Oyedepo said excess caseload and lack of cooperation of the
defence with the prosecution are stumbling blocks.

He believes that attitudinal change is needed.

To illustrate, the Supreme Court, in a June 9, 2017 judgment on
an appeal by former PDP National Publicity Secretary Olisa Metuh,
validated Section 306 of the ACJA, which prohibits the stay of
proceedings in criminal trials when there are interlocutory appeals
on rulings.

Oyedepo asked: “Can you imagine that a legal practitioner who
has the interest of his nation at heart will file an application
for stay of proceedings, notwithstanding the Supreme Court decision
in Metuh vs FRN, just to stultify trial?”

The EFCC lawyer does not absolve prosecutors of blame; some, he
said, fail to put their houses in order.

“This often manifest when the prosecution serves the defence
team with additional proof of evidence or amended charge on the
date a matter is fixed for trial. If we agree to change our
attitude, then we can overcome these challenges.”

Oyedepo believes more courts should be designated to handle only
criminal cases as done by the Lagos State High Court.

He underscored the needed for an amendment of Section 396 to
give it teeth.

“I will plead that our judges should do more in ensuring
compliance with the provisions of Section 396. I will also
recommend a slight amendment to Section 396.

“There should be a legislative intervention allotting number of
days within which to conclude a criminal proceeding.

“This was introduced in the Electoral Act and it has being
working. If it can work in electoral proceedings, then it can work
in criminal proceedings too,” Oyedepo said.

EFCC: No complaints

Oyedepo prosecutes most ongoing high profile cases in Lagos.
Aside Fani-Kayode/Usman and Amosu/others, he also prosecutes Rickey
Tarfa (SAN), Paul Usoro (SAN), Justice Rita Ofili-Ajumogobia,
musician Naira Marley, former ministers Jumoke Akinjide and Prof
Abubakar Suleiman and their co-accused.

He is also the prosecutor in the cases involving Atiku
Abubakar’s son-in-law Abdullahi Babalele and his co-accused, former
Independent National Electoral Commission (INEC) Chairman Prof
Maurice Iwu, former President Goodluck Jonathan’s aide Waripamo
Owei-Dudafa, former Nigerian Maritime Administration and Safety
Agency (NIMASA) Managing Director Patrick Akpobolokemi and his
co-accused, former Nigeria Airspace Management Agency (NAMA)
Managing Director Ibrahim Abdulsalam, among others.

Yet, EFCC spokesman Wilson Uwujaren does not think Oyedepo is
overworked.

On whether the commission plans to increase the number of
prosecutors in Lagos, he said the anti-graft agency has no problem
prosecuting cases efficiently with the available manpower.

He said: “Has Oyedepo complained to you that he is overworked?
The choice of counsel to handle specific case is the prerogative of
the Commission.

“All EFCC cases in court are being prosecuted diligently within
the limits of our resources.”

Making Section 396 work

Rule of Law Advisor to the President, Office of the Vice
President, Dr Fatima Waziri-Azi, said it is not only full court
dockets of judges that make the section impracticable, but
congested dairies of prosecutors.

To effectively implement Section 396, she said there is the need
to establish special courts to hear only corruption cases.

“The creation of special courts is a common phenomenon all over
the world and the advantages include increased efficiency and
greater expertise.

“Rather than have one judge hear different cases, the
establishment of special courts will help streamline the judicial
process,” she said.

Waziri-Azi said for day-to-day trial to be achieved, more judges
and prosecutors are needed; court facilities must also be
improved.

“Clearly, judges as well as prosecutors are over-burdened with
cases. As such, the appointment of more judges will ease their
burden, which in turn will free up the dockets.

“The recruitment of more prosecutors would help minimise the
caseload on individual prosecutors.

“In addition, it also means improved welfare packages for
judges, court personnel and prosecutors as well as improved court
facilities,” she said.

Waziri-Azi suggested that Magistrates’ Courts should be
empowered to handle some other classes of cases to reduce the
burden on the high courts.

Human rights lawyer Jiti Ogunye said the ACJA stayed for nine
years in the National Assembly before it was enacted in 2015.
Stakeholders had ample time to ponder on its provisions but did
not, he noted.

He was, however, of the view that inadequate resources made the
section’s implementation difficult.

“For instance, the law was made on the assumption that judges
will be sufficient in terms of number, and in terms of judges-cases
ratio,” Ogunye said.

The lawmakers, he added, also anticipated that there will be
adequate number of prosecutors to deal with cases efficiently and
speedily.

Ogunye said: “How many prosecutors does EFCC have and how many
cases does each of them handle?

“If you’re to check the statistics, you will be shocked that it
is not five cases to a prosecutor.

“They’re charging people daily, but they’re not hiring, training
and retraining prosecutors.”

The solution? The conditions must be right for Section 396 to
work.

Ogunye said: “The ideal of speedy criminal justice
administration is not restricted to our jurisdiction. It’s a global
ideal.

“But the difference is that they (developed countries) have the
resources to investigate efficiently, to prosecute effectively and
to adjudicate seamlessly.

“Until we put our act together, we’ll have fine provisions in
our laws, but non-compliance.”

He does not think that establishing special courts will be the
magic wand. He wondered whether there will be special courts for
banditry, kidnapping and other crimes.

“In jurisdictions where corruption cases are handled with
dispatch, which special courts do they have?

“I am calling for a holistic rethinking of our criminal justice
system, enhancing our investigation resources, our prosecutorial
tools, and our adjudicatory processes, because it’s a chain.”

Like Ogunye, Chief Olanipekun believes Nigeria’s justice system
needs an overhaul.

“All we need to do is to revamp or restructure the entire
administration of justice architecture in this country, both civil
and criminal, so as to pave way for a smooth and speedy justice
delivery system,” he said.

The SAN faulted Section 396, saying it was not only well
thought-out; some of its provisions are, to him,
unconstitutional.

Olanipekun said: “Nobody should be blamed for the non-compliance
with the unrealistic and unattainable provisions of Section
396.

“I beg to disagree that the illusory provisions are being
breached. Rather, my position is that they cannot be implemented.
No good law enacts what is impossible.

“The National Assembly should go back to the drawing board to
make a realistic law for the administration of criminal justice
within its own sphere of influence or constitutional
competence.”

Justice Tsoho, speaking at an event to mark the beginning of the
2019/2020 legal year, underscored the need to appoint more
judges.

The Chief Judge said: “About 116,623 cases are pending in the
Federal High Court; 16,144 cases were filed in this quarter alone
in which 12,692 have been disposed of.

“It is obvious that the judges were over-burdened with work in
the last legal year. We, therefore, need to engage more judicial
officers to help out.

“However, it does appear that there was no provision for
appointment of judges in the current budget.

“I will make effort to discuss with the relevant stakeholders to
see to the possibility of facilitating the recruitment of more
judicial officers in the course of the year.”

*This report is with support from the Premium Times
Centre for Investigative Journalism (PTCIJ).

Culled from TheNation